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AMERICA, 


"  The  very  Deity  itself  both  keepeth  and  requireth  for  ever  this  to  be 
kept  as  a  law,  that  wheresoever  there  is  a  coagmentation  of  many,  the 
lowest  be  knit  unto  the  highest  by  that  which,  being  interjacent,  may  cause 
each  to  cleave  to  the  other,  and  so  all  to  continue  one.  This  order  of  things 
in  public  societies  is  the  work  of  policy,  and  the  proper  instrument  thereof 
in  every  degree  is  Power ;  Power  being  that  ability  which  we  have  of  our- 
selves, or  receive  from  others  for  performance  of  any  action."— HOOKER. 


DEMOCRACY  IN  AMERICA. 


BY 


ALEXIS  DE  TOCQUEVILLE, 

AVOCAT  A  LA  COUR  ROYALE  DE  PARIS, 
ETC.,  ETC. 


TRANSLATED  BY 

HENRY  REEVE,  ESQ. 

THIRD  EDITION. 

IN  TWO  VOLUMES. 
VOL.  I* 


LONDON: 
SAUNDERS  AND  OTLEY,  CONDUIT  STREET. 

1838. 


LONDON : 

fHINTED  BY  RICHARD  AND  JOHN  E.  TAYLOR, 
RED  LION  COURT,  FLEET  STREET. 


3  XO.  <\  73 


TRANSLATOR'S  PREFACE. 


J.N  presenting  the  translation  of  this  work  to 
the  public,  preceded  by  an  Introduction  in  which 
the  author  calls  the  attention  of  the  reader  to  the 
present  social  state  of  France,  I  may  perhaps  be 
allowed  to  say  a  few  words  on  the  inferences 
which  are  to  be  drawn  from  the  democratic  in- 
stitutions of  America  relative  to  our  own  political 
condition.  We  live  at  a  time  when  so  many  of 
the  maxims  of  government  are  worn  out,  that  in 
casting  our  eyes  upon  the  aphorisms  of  the  great 
statesmen  of  Europe,  we  are  astonished  to  find 
that  the  authority  they  attempted  to  defend  is 
vanished,  and  the  principles  by  which  they  de- 
fended it  are  no  more.  The  book  of '  The 
Prince '  is  closed  for  ever  as  a  State  manual ; 

997571 


VI 


and  the  book  of  '  The  People ' — a  book  of  per- 
haps darker  sophistries  and  more  pressing  ty- 
ranny— is  as  yet  unwritten.     Nevertheless,  the 
events  of  every  day  ought  to  impress  upon  our 
minds  the  necessity  of  studying  that  element 
which  threatens  us  ;  and  for  a  generation  which 
is  manifestly  called  upon  to  witness  the  solemn 
and  terrible  changes  of  the  constitution  of  the 
empires  of  the  earth,  the  deadliest  sin  is  thought- 
lessness, the  most  noxious  food  is  prejudice,  and 
the  most  fatal  disease  is  party-spirit.     The  rela- 
tions between  men  and  power  have  been  so  in- 
differently understood  ever  since  the  beginning 
of  the  world,  that  we  have  found  out  no  remedy 
for  evil  but  evil,  no  safety  from  injury  but  injury, 
no  protection  from  attack  but  attack  ;  and  in  all 
the  wild  experiments  which  a  relaxed  social  con- 
dition has  undergone,  we  have  only  had  fresh 
confirmation  of  a  truth  enounced  by  Lord  Bacon, 
namely,  that  the  logical  part  of  men's  minds  is 
often   good,    but   the  mathematical  is  nothing 
worth  ;  that  is,  they  can  judge  well  of  the  at- 
taining any  end,  but  cannot  judge  of  the  value 
of  the  end  itself.     If  England  has  hitherto  main- 
tained a  sober  and  becoming  position  in  the  midst 
of  greater  revolutions  than  the  world  has  witness- 


Vll 

ed  since  the  Christian  aera,  not  the  less  does  it 
behove  her  to  meditate  upon  the  lessons  of  her 
allies  and  her  descendants.     What  her  increa- 
sing intelligence  might  suggest,   her  increasing 
evils,   her   increasing  population,  her  burdens, 
her  crime,  and  her  perils  enforce  :  the  democra- 
tic element  must  be  met,  and  to  be  met  it  must 
be  known,  before  the  unhallowed  rites  of  destruc- 
tion have  begun ;  before  recourse  has  been  had 
to  the  probabilities  of  chance,  in  ignorance  of  the 
probabilities  of  cause  ;  before  the  vertigo  of  con- 
quest has  seized  the  lower  orders,  or  the  palsy  of 
dejection  fallen  upon  the  aristocracy.     It  is  pre- 
sumed that  the  lesson  will  not  be  the  less  worthy 
of  our  attention  because  it  is  given  us  by  a  writer 
whose  national  experience  and  whose   standard 
of  comparison  is  more  democratic  than  anything 
which  we  are  acquainted  with  in  England.     Al- 
though the  reasonableness  of  democracy  is  shown 
by  the  American  States,  where  the  activity  of  a 
trading  population  is  dignified  by  the  exercise  of 
many  civic  viitues,  and  where  the  task  of  the  le- 
gislator was  not  to  change  or  to  repair,  but  to 
organize  and  create,  the  perilous  erection  of  a 
central  power,  such  as  now  obtains  in  France, 
may  check  the  confidence  with  which  the  hand 


Vlll 

of  the  many  is  raised  against  the  errors  of  the 
few,  and  we  may  hesitate  before  we  displace  the 
time-honoured  dispensers  of  social  benefits,  to 
make  way  for  the  more  compact  and  less  flexible 
novelties  of  the  time.  Those  thinkers  who  are 
wont  in  politics  to  substitute  principles  of  gene- 
ral utility  for  those  of  local  interests,  are  like 
builders  who  should  in  all  cases  rely  on  the  prin- 
ciple of  gravity,  to  the  exclusion  of  the  law  of 
cohesion.  The  gift  of  self-respect,  which  is  the 
parent  of  the  inward  dignity  of  the  citizen,  is  not 
derived  from  the  debasing  and  democratic  turbu- 
lence of  party-spirit,  affecting  to  compass  the 
ends  of  the  State  to  which  he  belongs,  but  from 
the  quiet  exercise  of  functions  nearer  home. 

The  English  reader  will  probably  be  struck 
with  the  revival  in  the  United  States  of  the  more 
ancient  parts  of  our  Constitution,  whilst  the 
Feudal  or  Norman  element  is  totally  excluded, 
except  in  a  few  cases  which  may  be  quoted  as 
anomalies.  Blackstone  affirms  (and  the  great 
authority  of  Selden  corroborates  the  fact,)  that 
the  partible  quality  of  lands  by  the  custom  of 
gavelkind  is  undoubtedly  of  British  origin,  and 
obtained  universally  before  the  sera  of  the  Nor- 
man Conquest.  The  constitution  of  general 


IX 


i 


public  assemblies ;  the  election  of  their  magis- 
trates by  the  people,  their  sheriffs,  their  coro- 
ners, their  port-reeves,  and  even  their  tithing- 
men  ;  the  dispensation  of  justice  in  the  county- 
courts  principally,  except  in  cases  in  which  the 
supreme  authority  of  the  crown  was  called  upon 
to  interfere,  are  laws  of  Saxon  parentage.  These 
principles  are  the  very  basis  of  the  American 
Constitution ;  and  if  the  settlers  of  New  England 
discarded  the  feudal  rights,  the  royal  justiciars, 
and  the  claims  of  primogeniture,  when  they  re- 
linquished the  feelings,  the  traditions,  and  the 
character  of  English  subjects,  it  is  not  without 
pride,  mingled  with  admiration,  that  a  Briton 
points  to  the  common  source  of  our  liberties, 
and  to  that  Saxon  foundation  of  our  national 
existence  which  we  couple  with  the  name  of 
Alfred,  and  from  which  many  of  the  institutions 
of  the  American  States  derive  their  being. 

I  cannot  conclude  without  expressing  a  hope 
that  this  translation  may  tend  to  spread  in  En- 
gland some  of  those  sound  and  comprehensive 
views  of  the  nature  and  tendency  of  the  demo- 
cratic element  which  its  author  has  put  forth  in 
France  ;  nor  without  expressing  my  very  warm 
thanks  to  M.  de  Tocqueville  for  the  kindness  with 
a5 


X 

which  he  has  assisted  me  in  the  difficulties  which 
presented  themselves  in  preparing  this  book  for 
the  public  eye.  Whatever  may  be  the  success  of 
the  following  pages,  I  shall  always  remember 
with  pleasure  that  I  was  encouraged  in  my  task 
by  the  high  esteem  and  sincere  regard  which  I 
entertain  for  the  author. 

H.  R. 

Hampstead,  9th  June,  1835. 


INTRODUCTION. 


.AMONGST  the  novel  objects  that  attracted  my  at- 
tention during  my  stay  in  the  United  States,  nothing 
struck  me  more  forcibly  than  the  general  equality  of 
conditions.  I  readily  discovered  the  prodigious  influ- 
ence which  this  primary  fact  exercises  on  the  whole 
course  of  society,  by  giving  a  certain  direction  to  public 
opinion,  and  a  certain  tenour  to  the  laws ;  by  impart- 
ting  new  maxims  to  the  governing  powers,  and  pecu- 
liar habits  to  the  governed. 

I  speedily  perceived  that  the  influence  of  this  fact 
extends  far  beyond  the  political  character  and  the  laws 
of  the  country,  and  that  it  has  no  less  empire  over  civil 
society  than  over  the  Government ;  it  creates  opinions, 
engenders  sentiments,  suggests  the  ordinary  practices 
of  life,  and  modifies  whatever  it  does  not  produce. 

The  more  I  advanced  in  the  study  of  American  so- 
ciety, the  more  I  perceived  that  the  equality  of  condi- 
tions is  the  fundamental  fact  from  which  all  others  seem 
to  be  derived,  and  the  central  point  at  which  all  my 
observations  constantly  terminated. 

I  then  turned  my  thoughts  to  our  own  hemisphere, 
where  I  imagined  that  I  discerned  something  analogous 
to  the  spectacle  which  the  New  World  presented  to 


Xll 

me.  I  observed  that  the  equality  of  conditions  is  daily 
progressing  towards  those  extreme  limits  which  it 
seems  to  have  reached  in  the  United  States ;  and  that 
the  democracy  which  governs  the  American  communi- 
ties appears  to  be  rapidly  rising  into  power  in  Europe. 

I  hence  conceived  the  idea  of  the  book  which  is  now 
before  the  reader. 

It  is  evident  to  all  alike  that  a  gi'eat  democratic  re- 
volution is  going  on  amongst  us  ;  but  there  are  two 
opinions  as  to  its  nature  and  consequences.  To  some 
it  appears  to  be  a  novel  accident,  which  as  such  may 
still  be  checked;  to  others  it  seems  irresistible,  because 
it  is  the  most  uniform,  the  most  ancient,  and  the  most 
permanent  tendency  which  is  to  be  found  in  history. 

Let  us  recollect  the  situation  of  France  seven  hun- 
dred years  ago,  when  the  territory  was  divided  amongst 
a  small  number  of  families,  who  were  the  owners  of  the 
soil  and  the  rulers  of  the  inhabitants ;  the  right  of 
governing  descended  with  the  family  inheritance  from 
generation  to  generation ;  force  was  the  only  means  by 
which  man  could  act  on  man ;  and  landed  property  was 
the  sole  source  of  power. 

Soon,  however,  the  political  power  of  the  clergy  was 
founded,  and  began  to  exert  itself:  the  clergy  opened 
its  ranks  to  all  classes,  to  the  poor  and  the  rich,  the 
villain  and  the  lord ;  equality  penetrated  into  the  Go- 
vernment through  the  Church  ;  and  the  being  who  as  a 
serf  must  have  vegetated  in  perpetual  bondage,  took 
his  place  as  a  priest  in  the  midst  of  nobles,  and  not 
unfrequently  above  the  heads  of  kings. 

The  different  relations  of  men  became  more  compli- 
cated and  more  numerous  as  society  gradually  became 


Xlll 

more  stable  and  more  civilized.  Thence  the  want  of 
civil  laws  was  felt ;  and  the  order  of  legal  functionaries 
soon  rose  from  the  obscurity  of  the  tribunals  and  their 
dusty  chambers,  to  appear  at  the  court  of  the  monarch, 
by  the  side  of  the  feudal  barons  in  their  ermine  and 
their  mail. 

Whilst  the  kings  were  ruining  themselves  by  their 
great  enterprises,  and  the  nobles  exhausting  their  re- 
sources by  private  wars,  the  lower  orders  were  enrich- 
ing themselves  by  commerce.  The  influence  of  money 
began  to  be  perceptible  in  State  affairs.  The  transac- 
tions of  business  opened  a  new  road  to  power,  and  the 
financier  rose  to  a  station  of  political  influence  in  which 
he  was  at  once  flattered  and  despised. 

Gradually  the  spread  of  mental  acquirements,  and 
the  increasing  taste  for  literature  and  art,  opened 
chances  of  success  to  talent ;  science  became  a  means 
of  government,  intelligence  led  to  social  power,  and 
the  man  of  letters  took  a  part  in  the  affairs  of  the 
State. 

The  value  attached  to  the  privileges  of  birth  de- 
creased in  the  exact  proportion  in  which  new  paths 
were  struck  out  to  advancement.  In  the  eleventh 
century  nobility  wras  beyond  all  price ;  in  the  thirteenth 
it  might  be  purchased ;  it  was  conferred  for  the  first 
time  in  1270 ;  and  equality  was  thus  introduced  into 
the  Government  by  the  aristocracy  itself. 

In  the  course  of  these  seven  hundred  years,  it  some- 
times happened,  that  in  order  to  resist  the  authority  of 
the  Crown,  or  to  diminish  the  power  of  their  rivals, 
the  nobles  granted  a  certain  share  of  political  rights  to 
the  people:  or,  more  frequently,  the  king  permitted 


XIV 

the  lower  orders  to  enjoy  a  degree  of  power,  with  the 
intention  of  repressing  the  aristocracy. 

In  France  the  kings  have  always  been  the  most  act- 
ive and  the  most  constant  of  levellers.  When  they 
were  strong  and  ambitious,  they  spared  no  pains  to 
raise  the  people  to  the  level  of  the  nobles  ;  when  they 
were  temperate  or  weak,  they  allowed  the  people  to 
rise  above  themselves.  Some  assisted  the  democracy 
by  their  talents,  others  by  their  vices.  Louis  XL  and 
Louis  XIV.  reduced  every  rank  beneath  the  throne  to 
the  same  subjection ;  Louis  XV.  descended,  himself 
and  all  his  Court,  into  the  dust. 

As  soon  as  land  was  held  on  any  other  than  a  feudal 
tenure,  and  personal  property  began  in  its  turn  to  con- 
fer influence  and  power,  every  improvement  which  was 
introduced  in  commerce  or  manufacture  was  a  fresh 
element  of  the  equality  of  conditions.  Henceforward 
every  new  discovery,  every  new  want  which  it  engen- 
dered, and  every  new  desire  which  craved  satisfaction, 
was  a  step  towards  the  universal  level.  The  taste  for 
luxury,  the  love  of  war,  the  sway  of  fashion,  and  the 
most  superficial  as  well  as  the  deepest  passions  of  the 
human  heart,  co-operated  to  enrich  the  poor  and  to  im- 
poverish the  rich. 

From  the  time  when  the  exercise  of  the  intellect  be- 
came the  source  of  strength  and  of  wealth,  it  is  impos- 
sible not  to  consider  every  addition  to  science,  every 
fresh  truth,  and  every  new  idea  as  a  germ  of  power 
placed  within  the  reach  of  the  people.  Poetry,  elo- 
quence, and  memory,  the  grace  of  wit,  the  glow  of  ima- 
gination, the  depth  of  thought,  and  all  the  gifts  which 
are  bestowed  by  Providence  with  an  equal  hand,  turned 


XV 

to  the  advantage  of  the  democracy ;  and  even  when 
they  were  in  the  possession  of  its  adversaries,  they  still 
served  its  cause  by  throwing  into  relief  the  natural 
greatness  of  man;  its  conquests  spread,  therefore,  with 
those  of  civilization  and  knowledge  ;  and  literature  be- 
came an  arsenal,  where  the  poorest  and  the  weakest 
could  always  find  weapons  to  their  hand. 

In  perusing  the  pages  of  our  history,  we  shall  scarcely 
meet  with  a  single  great  event,  in  the  lapse  of  seven 
hundred  years,  which  has  not  turned  to  the  advantage 
of  equality. 

The  Crusades  and  the  wars  of  the  English  decimated 
the  nobles  and  divided  their  possessions  :  the  erection 
of  communes  introduced  an  element  of  democratic  li- 
berty into  the  bosom  of  feudal  monarchy ;  the  inven- 
tion of  fire-arms  equalized  the  villain  and  the  noble  on 
the  field  af  battle ;  printing  opened  the  same  resources 
to  the  minds  of  all  classes  ;  the  post  was  organized  so 
as  to  bring  the  same  information  to  the  door  of  the  poor 
man's  cottage,  and  to  the  gate  of  the  palace ;  and  Pro- 
testantism proclaimed  that  all  men  are  alike  able  to  find 
the  road  to  heaven.  The  discovery  of  America  offered 
a  thousand  new  paths  to  fortune,  and  placed  riches  and 
power  within  the  reach  of  the  adventurous  and  the 
obscure. 

If  we  examine  what  has  happened  in  France  at  in- 
tervals of  fifty  years,  beginning  with  the  eleventh  cen- 
tury, we  shall  invariably  perceive  that  a  twofold  revo- 
lution has  taken  place  in  the  state  of  society.  The  no- 
ble has  gone  down  on  the  social  ladder,  and  the  rotu- 
rier  has  gone  up  ;  the  one  descends  as  the  other  rises. 


XVI 


Every  half-century  brings  them  nearer  to  each  other, 
and  they  will  very  shortly  meet. 

Nor  is  this  phsenomenon  at  all  peculiar  to  France, 
Whithersoever  we  turn  our  eyes  we  shall  witness  the 
same  continual  revolution  throughout  the  whole  of 
Christendom. 

The  various  occurrences  of  national  existence  have 
everywhere  turned  to  the  advantage  of  democracy  ;  all 
men  have  aided  it  by  their  exertions  :  those  who  have 
intentionally  laboured  in  its  cause,  and  those  who  have 
served  it  unwittingly;  those  who  have  fought  for  it, 
and  those  who  have  declared  themselves  its  opponents, 
— have  all  been  driven  along  in  the  same  track,  have 
all  laboured  to  one  end,  some  ignorantly  and  some  un- 
willingly ;  all  have  been  blind  instruments  in  the  hands 
of  God. 

The  gradual  development  of  the  equality  of  condi- 
tions is  therefore  a  providential  fact,  and  it  possesses 
all  the  characteristics  of  a  Divine  decree  :  it  is  univer- 
sal, it  is  durable,  it  constantly  eludes  all  human  inter- 
ference, and  all  events  as  well  as  all  men  contribute  to 
its  progress. 

Would  it,  then,  be  wise  to  imagine  that  a  social  im- 
pulse which  dates  from  so  far  back,  can  be  checked  by 
the  efforts  of  a  generation  ?  Is  it  credible,  that  the  de- 
mocracy which  has  annihilated  the  feudal  system  and 
vanquished  kings,  will  respect  the  citizen  and  the  ca- 
pitalist ?  Will  it  stop  now  that  it  is  grown  so  strong, 
and  its  adversaries  so  weak? 

None  can  say  which  way  we  are  going,  for  all  terms 
of  comparison  are  wanting :  the  equality  of  conditions 


XV11 

is  more  complete  in  the  Christian  countries  of  the  pre- 
sent day,  than  it  has  been  at  any  time,  or  in  any  part 
of  the  world  ;  so  that  the  extent  of  what  already  exists 
prevents  us  from  foreseeing  what  may  be  yet  to  come. 

The  whole  book  which  is  here  offered  to  the  public 
has  been  written  under  the  impression  of  a  kind  of  re- 
ligious dread  produced  in  the  author's  mind  by  the  con- 
templation of  so  irresistible  A  revolution,  which  has  ad- 
vanced for  centuries  in  spite  of  such  amazing  obstacles, 
and  which  is  still  proceeding  in  the  midst  of  the  ruins 
it  has  made. 

It  is  not  necessary  that  God  himself  should  speak  in 
order  to  disclose  to  us  the  unquestionable  signs  of  his 
will ;  we  can  discern  them  in  the  habitual  course  of  na- 
ture, and  in  the  invariable  tendency  of  events  :  I  know, 
without  a  special  revelation,  that  the  planets  move  in 
the  orbits  traced  by  the  Creator's  finger. 

If  the  men  of  our  time  were  led  by  attentive  observa- 
tion and  by  sincere  reflection,  to  acknowledge  that  the 
gradual  and  progressive  development  of  social  equality 
is  at  once  the  past  and  future  of  their  history,  this  so- 
litary truth  would  confer  the  sacred  character  of  a  di- 
vine decree  upon  the  change.  To  attempt  to  check 
democracy  would  be  in  that  case  to  resist  the  will  of 
God  ;  and  the  nations  would  then  be  constrained  to 
make  the  best  of  the  social  lot  awarded  to  them  by 
Providence. 

The  Christian  nations  of  our  age  seem  to  me  to  pre- 
sent a  most  alarming  spectacle  ;  the  impulse  which  is 
bearing  them  along  is  so  strong  that  it  cannot  be  stop- 
ped, but  it  is  not  yet  so  rapid  that  it  cannot  be  guided : 


XV111 


their  fate  is  in  their  hands ;  yet  a  little  while,  and  it 
may  be  so  no  longer. 

The  first  du.ty  which  is  at  this  time  imposed  upon 
those  who  direct  our  affairs  is  to  educate  the  demo- 
cracy ;  to  warm  its  faith,  if  that  be  possible  ;  to  purify 
its  morals;  to  direct  its  energies;  to  substitute  a  know- 
ledge of  business  for  its  inexperience,  and  an  acquaint- 
ance with  its  true  interests  for  its  blind  propensities  ; 
to  adapt  its  government  to  time  and  place,  and  to  mo- 
dify it  in  compliance  with  the  occurrences  and  the 
actors  of  the  age. 

.A  new  science  of  politics  is  indispensable  to  a  new 
world. 

This,  however,  is  what  we  think  of  least ;  launched 
in  the  middle  of  a  rapid  stream,  we  obstinately  fix  our 
eyes  on  the  ruins  which  may  still  be  descried  upon  the 
shore  we  have  left,  whilst  the  current  sweeps  us  along, 
and  drives  us  backwards  toward  the  gulf. 

In  no  country  in  Europe  has  the  great  social  revo- 
lution which  I  have  been  describing  made  such  rapid 
progress  as  in  France ;  but  it  has  always  been  borne 
on  by  chance.  The  heads  of  the  State  have  never 
had  any  forethought  for  its  exigencies,  and  its  victo- 
ries have  been  obtained  without  their  consent  or  with- 
out their  knowledge.  The  most  powerful,  the  most  in- 
telligent, and  the  most  moral  classes  of  the  nation  have 
never  attempted  to  connect  themselves  with  it  in  order 
to  guide  it.  The  people  has  consequently  been  aban- 
doned to  its  wild  propensities,  and  it  has  grown  up 
like  those  outcasts  who  receive,  their  education  in  the 
public  streets,  and  who  are  unacquainted  with  aught 


XIX 


but  the  vices  and  wretchedness  of  society.  The  ex- 
istence of  a  democracy  was  seemingly  unknown,  when 
on  a  sudden  it  took  possession  of  the  supreme  power. 
Everything  was  then  submitted  to  its  caprices ;  it  was 
worshiped  as  the  idol  of  strength  ;  until,  when  it  was 
enfeebled  by  its  own  excesses,  the  legislator  conceived 
the  rash  project  of  annihilating  its  power,  instead  of 
instructing  it  and  correcting  its  vices  ;  no  attempt  was 
made  to  fit  it  to  govern,  but  all  were  bent  on  excluding 
it  from  the  Government. 

The  consequence  of  this  has  been  that  the  demo- 
cratic revolution  has  been  effected  only  in  the  material 
parts  of  society,  without  that  concomitant  change  in 
laws,  ideas,  customs  and  manners,  which  was  necessary 
to  render  such  a  revolution  beneficial.  We  have  got- 
ten a  democracy,  but  without  the  conditions  which 
lessen  its  vices  and  render  its  natural  advantages  more 
prominent ;  and  although  we  already  perceive  the 
evils  it  brings,  we  are  ignorant  of  the  benefits  it  may 
confer. 

While  the  power  of  the  Crown,  supported  by  the 
aristocracy,  peaceably  governed  the  nations  of  Europe, 
society  possessed,  in  the  midst  of  its  wretchedness,  se- 
veral different  advantages  which  can  now  scarcely  be 
appreciated  or  conceived. 

The  power  of  a  part  of  his  subjects  was  an  insur- 
mountable barrier  to  the  tyranny  of  the  prince ;  and 
the  monarch,  who  felt  the  almost  divine  character 
which  he  enjoyed  in  the  eyes  of  the  multitude,  derived 
a  motive  for  the  just  use  of  his  power  from  the  respect 
which  he  inspired. 

High  as  they  were  placed  above  the  people,  the  no- 


XX 

bles  could  not  but  take  that  calm  and  benevolent  inter- 
est in  its  fate  which  the  shepherd  feels  towards  his 
flock ;  and  without  acknowledging  the  poor  as  their 
equals,  they  watched  over  the  destiny  of  those  whose 
welfare  Providence  had  entrusted  to  their  care. 

The  people,  never  having  conceived  the  idea  of  a 
social  condition  different  from  its  own,  and  entertain- 
ing no  .expectation  of  ever  ranking  with  its  chiefs,  re- 
ceived benefits  from  them  without  discussing  their 
rights.  It  grew  attached  to  them  when  they  were  cle- 
ment and  just,  and  it  submitted  without  resistance  or 
servility  to  their  exactions,  as  to  the  inevitable  visita- 
tions of  the  arm  of  God.  Custom,  and  the  manners  of 
the  time,  had  moreover  created  a  species  of  law  in  the 
midst  of  violence,  and  established  certain  limits  to  op- 
pression. 

As  the  noble  never  suspected  that  any  one  would  at- 
tempt to  deprive  him  of  the  privileges  which  he  believed 
to  be  legitimate,  and  as  the  serf  looked  upon  his  own 
inferiority  as  a  consequence  of  the  immutable  order  of 
nature,  it  is  easy  to  imagine  that  a  mutual  exchange  of 
good-will  took  place  between  two  classes  so  differently 
gifted  by  fate.  Inequality  and  wretchedness  were  then 
to  be  found  in  society  ;  but  the  souls  of  neither  rank 
of  men  were  degraded. 

Men  are  not  corrupted  by  the  exercise  of  power  or 
debased  by  the  habit  of  obedience  ;  but  by  the  exer- 
cise of  a  power  which  they  believe  to  be  illegal,  and  by 
obedience  to  a  rule  which  they  consider  to  be  usurped 
and  oppressive. 

On  one  side  was  wealth,  strength,  and  leisure,  ac- 
companied by  the  refinements  of  luxury,  the  elegance 


XXI 


of  taste,  the  pleasures  of  wit,  and  the  religion  of  art ; 
•*  on  the  other  was  labour,  and  a  rude  ignorance  ;  but 
-.'  in  the  midst  of  this  coarse  and  ignorant  multitude,  it 
was  not  uncommon  to  meet  with  energetic  passions, 
r   generous  sentiments,  profound  religious  convictions, 
and  independent  virtues. 

The  body  of  a  State  thus  organized  might  boast  of 
its  stability,  its^  power,  and,  above  all,  of  its  glory. 

But  the  scene  is  now  changed,  and  gradually  the  two 
ranks  mingle ;  the  divisions  which  once  severed  man- 
kind are  lowered ;  property  is  divided,  power  is  held 
in  common,  the  light  of  intelligence  spreads,  and  the 
capacities  of  all  classes  are  equally  cultivated ;  the 
State  becomes  democratic,  and  the  empire  of  demo- 
cracy is  slowly  and  peaceably  introduced  into  the  in- 
stitutions and  the  manners  of  the  nation. 

I  can  conceive  a  society  in  which  all  men  would  pro- 
fess an  equal  attachment  and  respect  for  the  laws  of 
which  they  are  the  common  authors;  in  which  the 
authority  of  the  State  would  be  respected  as  necessary, 
though  not  as  divine  ;  and  the  loyalty  of  the  subject 
to  the  chief  magistrate  would  not  be  a  passion,  but  a 
quiet  and  rational  persuasion.  Every  individual  being 
in  the  possession  of  rights  which  he  is  sure  to  retain, 
a  kind  of  manly  reliance  and  reciprocal  courtesy  would 
arise  between  all  classes,  alike  removed  from  pride  and 
meanness. 

The  people,  well  acquainted  with  its  true  interests, 
would  allow,  that  in  order  to  profit  by  the  advantages 
of  society,  it  is  necessary  to  satisfy  its  demands.  In 
this  state  of  things,  the  voluntary  association  of  the 
citizens  might  supply  the  individual  exertions  of  the 


XX11 

nobles,  and  the  community  would  be  alike  protected 
from  anarchy  and  from  oppression. 

I  admit  that  in  a  democratic  State  thus  constituted 
society  will  not  be  stationary ;  but  the  impulses  of  the 
social  body  may  be  regulated  and  directed  forwards  ; 
if  there  be  less  splendour  than  in  the  halls  of  an  ari- 
stocracy, the  contrast  of  misery  will  be  less  frequent 
also  ;  the  pleasures  of  enjoyment  may  be  less  excessive, 
but  those  of  comfort  will  be  more  general ;  the  sciences 
may  be  less  perfectly  cultivated,  but  ignorance  will  be 
less  common ;  the  impetuosity  of  the  feelings  will  be 
repressed,  and  the  habits  of  the  nation  softened ; 
there  will  be  more  vices  and  fewer  crimes. 

In  the  absence  of  enthusiasm  and  of  an  ardent  faith, 
great  sacrifices  may  be  obtained  from  the  members  of 
a  commonwealth  by  an  appeal  to  their  understandings 
and  their  experience  :  each  individual  will  feel  the  same 
necessity  for  uniting  with  his  fellow-citizens  to  protect 
his  own  weakness  ;  and  as  he  knows  that  if  they  are  to 
assist  he  must  co-operate,  he  will  readily  perceive  that 
his  personal  interest  is  identified  with  the  interest  of 
the  community. 

The  nation,  taken  as  a  whole,  will  be  less  brilliant, 
less  glorious,  and  perhaps  less  strong  ;  but  the  major- 
ity of  the  citizens  will  enjoy  a  greater  degree  of  pros- 
perity, and  the  people  will  remain  quiet,  not  because 
it  despairs  of  amelioration,  but  because  it  is  conscious 
of  the  advantages  of  its  condition. 

If  all  the  consequences  of  this  state  of  things  were 
not  good  or  useful,  society  would  at  least  have  appro- 
priated all  such  as  were  useful  and  good  ;  and  having 
once  and  for  ever  renounced  the  social  advantages  of 


XX111 


dstocracy,  mankind  would  enter  into  possession  of  all 
le  benefits  which  democracy  can  afford. 
But  here  it  may  be  asked  what  we  have  adopted  in 
ic  place  of  those  institutions,  those  ideas,  and  those 
istoms  of  our  forefathers  which  we  have  abandoned. 
.  The  spell  of  royalty  is  broken,  but  it  has  not  been 
acceeded  by  the  majesty  of  the  laws ;  the  people  has 
arned  to  despise  all  authority,  but  fear  now  extorts 
larger  tribute  of  obedience  than  that  which  was  for- 
erly  paid  by  reverence  and  by  love. 
I  perceive  that  we  have  destroyed  those  independent 
iings  which  were  able  to  cope  with  tyranny  single- 
nded ;  but  it  is  the  Government  that  has  inherited 
e  privileges  of  which  families,  corporations,  and  in- 
viduals  have  been  deprived ;  the  weakness  of  the 
lole  community  has  therefore  succeeded  to  that  in- 
icnce  of  a  small  body  of  citizens,  which,  if  it  was 
metimes  oppressive,  was  often  conservative. 
The  division  of  property  has  lessened  the  distance 
rich  separated  the  rich  from  the  poor ;  but  it  would 
jm  that  the  nearer  they  draw  to  each  other,  the 
eater  is  their  mutual  hatred,  and  the  more  vehement 
3  envy  and  the  dread  with  which  they  resist  each 
ler's  claims  to  power ;  the  notion  of  Right  is  alike 
ensible  to  both  classess,  and  Force  affords  to  both 
i  only  argument  for  the  present,  and  the  only  gua- 
itee  for  the  future. 

The  poor  man  retains  the  prejudices  of  his  fore- 

icrs  without  their  faith,  and  their  ignorance  with- 

their  virtues ;  he  has  adopted  the  doctrine  of  self- 

;rest  as  the  rule  of  his  actions,  without  understand- 


XXIV 

ing  the  science  which  controls  it,  and  his  egotism  is  n 
less  blind  than  his  devotedness  was  formerly. 

If  society  is  tranquil,  it  is  not  because  it  relies  upo 
its  strength  and  its  well-being,  but  because  it  knows  it 
weakness  and  its  infirmities ;  a  single  effort  may  coi 
it  its  life ;  everybody  feels  the  evil,  but  no  one  ha 
courage  or  energy  enough  to  seek  the  cure ;  the  dt 
sires,  the  regret,  the  sorrows,  and  the  joys  of  the  tim 
produce  nothing  that  is  visible  or  permanent,  like  th 
passions  of  old  men  which  terminate  in  impotence. 

We  have,  then,  abandoned  whatever  advantages  th 
old  state  of  things  afforded,  without  receiving  any  con 
pensation  from  our  present  condition  ;  having destroye 
an  aristocracy,  we  seem  inclined  to  survey  its  ruii 
with  complacency,  and  to  fix  our  abode  in  the  midst 
them. 

The  phenomena  which  the  intellectual  world  pr 
sents   are   not  less   deplorable.      The  democracy 
France,  checked  in  its  course  or  abandoned  to  its  la* 
less   passions,   has   overthrown  whatever  crossed  i 
path,  and  has  shaken  all  that  it  has  not  destroyt 
Its  empire  on  society  has  not  been  gradually  intr 
duced,  or  peaceably  established,  but  it  has  constan 
-advanced  in  the  midst  of  disorder  and  the  agitation 
a  conflict.     In  the  heat  of  the  struggle  each  partis 
is  hurried  beyond  the  limits   of  his  opinions  by  t 
opinions  and  the  excesses  of  his  opponents,  until 
loses  sight  of  the  end  of  his  exertions,  and  holds 
language  which  disguises  his  real  sentiments  or  sec 
instincts.     Hence  arises  the  strange  confusion  wh 
we  are  witnessing. 


XXV 


I  cannot  recall  to  my  mind  a  passage  in  history  more 
\  worthy  of  sorrow  and  of  pity  than  the  scenes  which 
J  are  happening  under  our  eyes :  it  is  as  if  the  natural 
,   bond  which  unites  the  opinions  of  man  to  his  tastes, 
and  his  actions  to  his  principles,  was  now  broken  ;  the 
sympathy  which  has  always  been  acknowledged  be- 
tween the  feelings  and  the  ideas  of  mankind  appears 
to  be  dissolved,  and  all  the  laws  of  moral  analogy  to 
be  abolished. 

Zealous  Christians  may  be  found  amongst  us,  whose 
minds  are  nurtured  in  the  love  and  knowledge  of  a  fu- 
ture life,  and  who  readily  espouse  the  cause  of  human 
liberty,  as  the  source  of  all  moral  greatness.  Christ- 
ianity, which  has  declared  that  all  men  are  equal  in  the 
sight  of  God,  will  not  refuse  to  acknowledge  that  all 
citizens  are  equal  in  the  eye  of  the  law.  But,  by  a 
singular  concourse  of  events,  religion  is  entangled  in 
those  institutions  which  democracy  assails,  and  it  is 
not  unfrequently  brought  to  reject  the  equality  it  loves, 
and  to  curse  that  cause  of  liberty  as  a  foe,  which  it 
might  hallow  by  its  alliance. 

By  the  side  of  these  religious  men  I  discern  others 
whose  looks  are  turned  to  the  earth  more  than  to 
Heaven  ;  they  are  the  partisans  of  liberty,  not  only  as 
the  source  of  the  noblest  virtues,  but  more  especially 
as  the  root  of  all  solid  advantages  ;  and  they  sincerely 
desire  to  extend  its  sway,  and  to  impart  its  blessings 
to  mankind.  It  is  natural  that  they  should  hasten  to 
invoke  the  assistance  of  religion,  for  they  must  know 
that  liberty  cannot  be  established  without  morality, 
nor  morality  without  faith ;  but  they  have  seen  religion 
in  the  ranks  of  their  adversaries,  and  they  inquire  no 

b 


I 

xxvi 

further;  some  of  them  attack  it  openly,  and  the 
mainder  are  afraid  to  defend  it. 

In  former  ages  slavery  has  been  advocated  by  the 
venal  and  slavish-minded,  whilst  the  independent  and 
the  warm-hearted  were  struggling  without  hope  to  save 
the  liberties  of  mankind.  But  men  of  high  and  gene- 
rous characters  are  now  to  be  met  with,  whose  opinions 
aretit  variance  with  their  inclinations,  and  who  praise 
that  servility  which  they  have  themselves  never  known. 
Others,  on  the  contrary,  speak  in  the  name  of  liberty, 
as  if  they  were  able  to  feel  its  sanctity  and  its  majesty, 
and  loudly  claim  for  humanity  those  rights  which  they 
have  always  disowned. 

There  are  virtuous  and  peaceful  individuals  whose 
pure  morality,  quiet  habits,  affluence,  and  talents  fit 
them  to  be  the  leaders  of  the  surrounding  population ; 
their  love  of  their  country  is  sincere,  and  they  are 
prepared  to  make  the  greatest  sacrifices  to  its  welfare, 
but  they  confound  the  abuses  of  civilization  with  its 
benefits,  and  the  idea  of  evil  is  inseparable  in  their 
minds  from  that  of  novelty. 

Not  far  from  this  class  is  another  party,  whose  ob- 
ject is  to  materialize  mankind,  to  hit  upon  what  is  ex- 
pedient without  heeding  what  is  just,  to  acquire  know- 
ledge without  faith,  and  prosperity  apart  from  virtue  ^ 
assuming  the  title  of  the  champions  of  modern  civiliza- 
tion, and  placing  themselves  in  a  station  which  they 
usurp  with  insolence,  and  from  which  they  are  driven 
by  their  own  unworthiness. 

Where  are  we  then? 

The  religionists  are  the  enemies  of  liberty,  and  the 
friends  of  liberty  attack  religion  ;  the  high-minded  and 

I 


XXV11 

the  noble  advocate  subjection,  and  the  meanest  and 
most  servile  minds  preach  independence ;  honest  and 
enlightened  citizens  are  opposed  to  all  progress,  whilst 
men  without  patriotism  and  without  principles  are  the 
apostles  of  civilization  and  of  intelligence. 

Has  such  been  the  fate  of  the  centuries  which  have 
preceded  our  own  ?  and  has  man  always  inhabited  a 
world,  like  the  present,  where  nothing  is  linked  to- 
gether, where  virtue  is  without  genius,  and  genius 
without  honour ;  where  the  love  of  order  is  confounded 
with  a  tasle  for  oppression,  and  the  holy  rites  of  free- 
dom with  a  contempt  of  law  ;  where  the  light  thrown 
by  conscience  on  human  actions  is  dim,  and  where  no- 
thing seems  to  be  any  longer  forbidden  or  allowed, 
honourable  or  shameful,  false  or  true  ? 

I  cannot,  however,  believe  that  the  Creator  made 
man  to  leave  him  in  an  endless  struggle  with  the  intel- 
lectual miseries  which  surround  us  :  God  destines  a 
calmer  and  a  more  certain  future  to  the  communities  of 
Europe  ;  I  am  unacquainted  with  his  designs,  but  I 
shall  not  cease  to  believe  in  them  because  I  cannot 
fathom  them,  and  I  had  rather  mistrust  my  own  capa- 
city than  his  justice. 

There  is  a  country  in  the  world  where  the  great  re- 
volution which  I  am  speaking  of  seems  nearly  to  have 
reached  its  natural  limits  ;  it  has  been  effected  with 
ease  and  simplicity,  say  rather  that  this  country  has 
attained  the  consequences  of  the  democratic  revolution 
which  we  are  undergoing,  without  having  experienced 
the  revolution  itself. 

The  emigrants  who  fixed  themselves  on  the  shores 
of  America  in  the  beginning  of  the  seventeenth  century 


XXV111 


severed  the  democratic  principle  from  all  the  principles 
which  repressed  it  in  the  old  communities  of  Europe, 
and  transplanted  it  unalloyed  to  the  New  World.  It 
has  there  been  allowed  to  spread  in  perfect  freedom, 
and  to  put  forth  its  consequences  in  the  laws  by  influ- 
encing the  manners  of  the  country. 

It  appears  to  me  beyond  a  doubt  that  sooner  or  later 
we  shall  arrive,  like  the  Americans,  at  an  almost  com- 
plete equality  of  conditions.  But  I  do  not  conclude 
from  this,  that  we  shall  ever  be  necessarily  led  to  draw 
the  same  political  consequences  which  the  Americans 
have  derived  from  a  similar  social  organization.  I  am 
far  from  supposing  that  they  have  chosen  the  only  form 
of  government  which  a  democracy  may  adopt ;  but  the 
identity  of  the  efficient  cause  of  laws  and  manners  in 
the  two  countries  is  sufficient  to  account  for  the  im- 
mense interest  we  have  in  becoming  acquainted  with 
its  effects  in  each  of  them. 

It  is  not,  then,  merely  to  satisfy  a  legitimate  curiosity 
that  I  have  examined  America ;  my  wish  has  been  to 
find  instruction  by  which  we  may  ourselves  profit. 
Whoever  should  imagine  that  I  have  intended  to  write 
a  panegyric  would  be  strangely  mistaken,  and  on  read- 
ing this  book  he  will  perceive  that  such  was  not  my  de- 
sign :  nor  has  it  been  my  object  to  advocate  any  form 
of  government  in  particular,  for  I  am  of  opinion  that 
absolute  excellence  is  rarely  to  be  found  in  any  legis- 
lation ;  I  have  not  even  affected  to  discuss  whether  the 
social  revolution,  which  I  believe  to  be  irresistible,  is 
advantageous  or  prejudicial  to  mankind ;  I  have  ac- 
knowledged this  revolution  as  a  fact  already  accom- 
plished or  on  the  eve  of  its  accomplishment ;  and  I  have 


XXIX 


selected  the  nation,  from  amongst  those  which  have 
undergone  it,  in  which  its  development  has  been  the 
most  peaceful  and  the  most  complete,  in  order  to  dis- 
cern its  natural  consequences,  and,  if  it  be  possible,  to 
distinguish  the  means  by  which  it  may  be  rendered 
profitable.  I  confess  that  in  America  I  saw  more  than 
America  ;  I  sought  the  image  of  democracy  itself,  with 
its  inclinations,  its  character,  its  prejudices,  and  its 
passions,  in  order  to  learn  what  we  have  to  fear  or  to 
hope  from  its  progress. 

In  the  first  part  of  this  work  I  have  attempted  to 
show  the  tendency  given  to  the  laws  by  the  democracy 
of  America,  which  is  abandoned  almost  without  restraint 
to  its  instinctive  propensities ;  and  to  exhibit  the  course 
it  prescribes  to  the  Government  and  the  influence  it 
exercises  on  affairs.  I  have  sought  to  discover  the 
evils  and  the  advantages  which  it  produces.  I  have 
examined  the  precautions  used  by  the  Americans  to 
direct  it,  as  well  as  those  which  they  have  not  adopted, 
and  I  have  undertaken  to  point  out  the  causes  which 
enable  it  to  govern  society. 

It  was  my  intention  to  depict,  in  a  second  part,  the 
influence  which  the  equality  of  conditions  and  the  rule 
of  democracy  exercise  on  the  civil  society,  the  habits, 
the  ideas,  and  the  manners  of  the  Americans  ;  I  begin, 
however,  to  feel  less  ardour  for  the  accomplishment  of 
this  project,  since  the  excellent  work  of  my  friend  and 
travelling  companion  M.  de  Beaumont  has  been  given 
to  the  world*.  I  do  not  know  whether  I  have  suc- 
ceeded in  making  known  what  I  saw  in  America,  but  I 

•  This  work  is  entitled  Marie,  ou  1'Esclavage  aux  Etats-Unis. 


XXX 

am  certain  that  such  has  been  my  sincere  desire,  and 
that  I  have  never,  knowingly,  moulded  facts  to  ideas, 
instead  of  ideas  to  facts. 

Whenever  a  point  could  be  established  by  the  aid  of 
written  documents,  I  have  had  recourse  to  the  original 
text,  and  to  the  most  authentic  and  approved  works*. 
I  have  cited  my  authorities  in  the  notes,  and  any  one 
may  refer  to  them.  Whenever  an  opinion,  a  political 
custom,  or  a  remark  on  the  manners  of  the  country  was 
concerned,  I  endeavoured  to  consult  the  most  enlight- 
ened men  I  met  with.  If  the  point  in  question  was  im- 
portant or  doubtful,  I  was  not  satisfied  with  one  testi- 
mony, but  I  formed  my  opinion  on  the  evidence  of  se- 
veral witnesses.  Here  the  reader  must  necessarily  be- 
lieve me  upon  my  word.  I  could  frequently  have  quoted 
names  which  are  either  known  to  him,  or  which  de- 
serve to  be  so,  in  proof  of  what  I  advance ;  but  I  have 
carefully  abstained  from  this  practice.  A  stranger  fre- 
quently hears  important  truths  at  the  fire-side  of  his 
host,  which  the  latter  would  perhaps  conceal  even  from 
the  ear  of  friendship ;  he  consoles  himself  with  his 
guest  for  the  silence  to  which  he  is  restricted,  and  the 
shortness  of  the  traveller's  stay  takes  away  all  fear  of 
his  indiscretion.  I  carefully  noted  every  conversation 

*  Legislative  and  administrative  documents  have  been  furnished 
me  with  a  degree  of  politeness  which  I  shall  always  remember  with 
gratitude.  Amongst  the  American  functionaries  who  thus  favoured 
my  inquiries  I  am  proud  to  name  Mr.  Edward  Livingston,  then  Se- 
cretary of  State,  and  late  American  Minister  at  Paris.  During  my 
stay  at  the  Session  of  Congress  Mr.  Livingston  was  kind  enough  to 
furnish  me  with  the  greater  part  of  the  documents  I  possess  relative 
to  the  Federal  Government.  Mr.  Livingston  is  one  of  those  rare  in- 
dividuals whom  one  loves,  respects,  and  admires  from  their  writings, 
and  to  whom  one  is  happy  to  incur  the  debt  of  gratitude  on  further 
acquaintance. 


XXXI 

of  this  nature  as  soon  as  it  occurred,  but  these  notes 
will  never  leave  my  writing-case  ;  I  had  rather  injure 
the  success  of  my  statements  than  add  my  name  to  the 
list  of  those  strangers  who  repay  the  generous  hospi- 
tality they  have  received  by  subsequent  chagrin  and 
annoyance. 

I  am  aware  that,  notwithstanding  my  care,  nothing 
will  be  easier  than  to  criticise  this  book,  if  any  one  ever 
chooses  to  criticise  it. 

Those  readers  who  may  examine  it  closely  will  dis- 
cover the  fundamental  idea  which  connects  the  several 
parts  together.  But  the  diversity  of  the  subjects  I 
have  had  to  treat  is  exceedingly  great,  and  it  will  not 
be  difficult  to  oppose  an  isolated  fact  to  the  body  of 
facts  which  I  quote,  or  an  isolated  idea  to  the  body  of 
ideas  I  put  forth.  I  hope  to  be  read  in  the  spirit  which 
has  guided  my  labours,  and  that  my  book  may  be 
judged  by  the  general  impression  it  leaves,  as  I  have 
formed  my  own  judgement  not  on  any  single  reason,  but 
upon  the  mass  of  evidence. 

It  must  not  be  forgotten  that  the  author  who  wishes 
to  be  understood  is  obliged  to  push  all  his  ideas  to  their 
utmost  theoretical  consequences,  and  often  to  the  verge 
of  what  is  false  or  impracticable  ;  for  if  it  be  necessary 
sometimes  to  quit  the  rules  of  logic  in  active  life,  such 
is  not  the  case  in  discourse,  and  a  man  finds  that  al- 
most as  many  difficulties  spring  from  inconsistency  of 
language,  as  usually  arise  from  consistency  of  conduct. 

I  conclude  by  pointing  out  myself  what  many  readers 
will  consider  the  principal  defect  of  the  work.  This 
book  is  written  to  favour  no  particular  views,  and  in 


XXX11 


composing  it  I  have  entertained  no  design  of  serving 
or  attacking  any  party  -  I  have  undertaken  not  to  see 
differently,  but  to  look  further  than  parties,  and  whilst 
they  are  busied  for  the  morrow,  I  have  turned  my 
thoughts  to  the  Future. 


TABLE  OF  CONTENTS 


OF 


THE  FIRST  VOLUME. 


Page 

TRANSLATOR'S  Preface » v 

Introduction. .  xi 


CHAPTER  I. 
Exterior  form  of  North  America 1 

CHAPTER  II. 

Origin  of  the  Anglo-Americans,  and  its  importance  in  rela- 
tion to  their  future  condition 12 

Reasons  of  certain  anomalies  which  the  laws  and 
customs  of  the  Anglo-Americans  present 36 

CHAPTER  III. 

Social  condition  of  the  Anglo-Americans 38 

The  striking  characteristic  of  the  social  condition  of 
the  Anglo-Americans  is  its  essential  Democracy,     ib. 


XXXIV 


Political  consequences  of  the  social  condition  of  the 
Anglo -Americans 47 

CHAPTER  IV. 
The  principle  of  the  sovereignty  of  the  people  in  America.     49 

CHAPTER  V. 

Necessity  of  examining  the  condition  of  the  States  before 

that  of  the  Union  at  large 53 

The  American  system  of  townships  and  municipal 

bodies  54 

Limits  of  the  township    57 

Authorities  of  the  township  in  New  England    ....  ib. 

Existence  of  the  township   61 

Public  spirit  of  the  townships  of  New  England. ...  63 

The  counties  of  New  England    66 

Administration  in  New  England 68 

General  remarks   on    the    Administration   of   the 

United  States 80 

Of  the  State     85 

Legislative  power  of  the  State    86 

The  executive  power  of  the  State 88 

Political  effects  of  the  system  of  local  administration 

in  the  United  States    89 

CHAPTER  VI. 

Judicial  power  in  the  United  States,  and  its  influence  on 

political  society   105 

Other  powers  granted  to  the  American  Judges. ...    112 

CHAPTER  VII. 
Political  jurisdiction  in  the  United  States 115 


XXXV 

CHAPTER  VIII. 

Page 

The  Federal  Constitution    122 

History  of  the  Federal  Constitution  ib. 

Summary  of  the  Federal  Constitution    125 

Prerogative  of  the  Federal  Government 127 

Federal  Powers    129 

Legislative  Powers ib. 

A  further  difference  between  the  Senate  and  the 

House  of  Representatives    133 

The  executive  power 1 34 

Differences  between  the  position  of  the  President  of 
the  United  States  and  that  of  a  Constitutional 

King  of  France 136 

Accidental  causes  which  may  increase  the  influence 

of  the  Executive 140 

Why  the  President  of  the  United  States  does  not  re- 
quire the  majority  of  the  two  Houses  in  order  to 

carry  on  the  Government    142 

Election  of  the  President 143 

Mode  of  election 149 

Crisis  of  the  election 153 

Re-election  of  the  President    155 

Federal  Courts 158 

Means  of  determining  the  jurisdiction  of  the  Federal 

Courts 163 

Different  cases  of  Jurisdiction 1 65 

Procedure  of  the  Federal  Courts     171 

High  rank  of  the  Supreme  courts  amongst  the  great 

powers  of  State   174 

In  what  respects  the  Federal  constitution  is  superior 

to  that  of  the  States    177 

Characteristics  which  distinguish  the  Federal  Consti- 
tution of  the  United  States  of  America  from  all 

other  Federal  Constitutions    1 82 

Advantages  of  the  Federal  system  in  general,  and 
its  special  utility  in  America 187 


XXXVI 

Page 

Why  the  Federal  system  is  not  adapted  to  all  peoples,  and 
how  the  Anglo-Americans  were  enabled  to  adopt  it . .    195 


CHAPTER  IX. 

I 

Why  the  people  may  strictly  be  said  to  govern  in  the 
United  States  .  .    207 


CHAPTER  X. 

Parties  in  the  United  States  208 

Remains  of  the  aristocratic  party  in  the   United 
States  .  .215 


CHAPTER  XI. 
Liberty  of  the  press  in  the  United  States 217 

CHAPTER  XII. 

Political  associations  in  the  United  States 230 


Appendix 241 

The  Constitution  of  the  United  States 266 

The  Constitution  of  the  State  of  New  York  . ,        .284 


DEMOCRACY  IN  AMERICA. 


CHAPTER  I. 

EXTERIOR  FORM  OF  NORTH  AMERICA. 

North  America  divided  into  two  vast  regions,  one  inclining  towards 
the  Pole,  the  other  towards  the  Equator. — Valley  of  the  Missis- 
sippi.— Traces  of  the  Revolutions  of  the  Globe. — Shore  of  the  At- 
lantic Ocean,  where  the  English  Colonies  were  founded. — Differ- 
ence in  the  appearance  of  North  and  of  Soiifli  America  at  the  time 
of  their  discovery. — Forests  of  North  America. — Prairies. — Wan- 
dering Tribes  of  Natives. — Their  outward  appearance,  manners, 
and  language. — Traces  of  an  unknown  people. 

NORTH  AMERICA  presents  in  its  external  form  cer- 
tain general  features  which  it  is  easy  to  discriminate  at 
the  first  glance. 

A  sort  of  methodical  order  seems  to  have  regulated 
the  separation  of  land  and  water,  mountains  and  valleys. 
A  simple  but  grand  arrangement  is  discoverable  amidst 
the  confusion  of  objects,  and  the  prodigious  variety  of 
scenes. 

This  continent  is  divided,  almost  equally,  into  two 
vast  regions*,  one  of  which  is  bounded,  on  the  north  by 
the  Arctic  Pole,  and  by  the  two  great  Oceans  on  the 
east  and  west.  It  stretches  towards  the  south,  forming 
a  triangle,  whose  irregular  sides  meet  at  length  below 
the  great  lakes  of  Canada. 

The  second  region  begins  where  the  other  terminates, 
and  includes  all  the  remainder  of  the  continent. 


VOL.  I. 


The  one  slopes  gently  towards  the  Pole,  the  other  to- 
wards the  Equator. 

The  territory  comprehended  in  the  first  region  de- 
scends towards  the  north  with  so  imperceptible  a  slope, 
that  it  may  almost  be  said  to  form  a  level  plain.  Within 
the  bounds  of  this  immense  tract  of  country  there  are 
neither  high  mountains  nor  deep  valleys.  Streams 
meander  through  it  irregularly :  great  rivers  mix  their 
currents,  separate  and  meet  again,  disperse  and  form 
vast  marshes,  losing  all  trace  of  their  channels  in  the 
labyrinth  of  waters  they  have  themselves  created ;  and 
thus  at  length,  after  innumerable  windings,  fall  into  the 
Polar  seas.  The  great  lakes  which  bound  this  first  re- 
gion are  not  walled  in,  like  most  of  those  in  the  Old 
World,  between  hills  and  rocks.  Their  banks  are  flat, 
and  rise  but  a  few  feet  above  the  level  of  their  waters ; 
each  of  them  thus  forming  a  vast  bowl  filled  to  the  brim. 
The  slightest  change  in  the  structure  of  the  globe  would 
cause  their  waters  to  rush  either  towards  the  Pole  or  to 
the  Tropical  Sea. 

The  second  region  is  more  varied  on  its  surface  and 
better  suited  for  the  habitation  of  man.  Two  long 
chains  of  mountains  divide  it  from  one  extreme  to  the 
other;  the  Alleghany  ridge  takes  the  form  of  the  shores  of 
the  Atlantic  Ocean;  the  other  is  parallel  with  the  Pacific. 

The  spacewhichliesbetween  these  two  chains  of  moun- 
tains contains  1,341,649  square  miles*.  Its  surface  is 
therefore  about  six  times  as  great  as  that  of  France. 

This  vast  territory,  however,  forms  a  single  valley, 
one  side  of  which  descends  gradually  from  the  rounded 
summits  of  the  Alleghanies,  while  the  other  rises  in  an 
uninterrupted  course  towards  the  tops  of  the  Rocky 
Mount-dins. 

At  the  bottom  of  the  valley  flows  an  immense  river, 

*  Darby's  '  View  of  the  United  States.' 


into  which  the  various  streams  issuing  from  the  moun- 
tains fall  from  all  parts.  In  memory  of  their  native  land, 
the  French  formerly  called  this  river  the  St.  Louis.  The 
Indians,  in  their  pompous  language,  have  named  it  the 
father  of  Waters,  or  the  Mississippi. 

The  Mississippi  takes  its  source  above  the  limit  of  the 
two  great  regions  of  which  I  have  spoken,  not  far  from 
the  highest  point  of  the  table-land  where  they  unite. 
Near  the  same  spot  rises  another  river*,  which  empties 
itself  into  the  Polar  seas.  The  course  of  the  Mississippi 
is  at  first  dubious :  it  winds  several  times  towards  the 
north,  from  whence  it  rose;  and  at  length,  after  having 
been  delayed  in  lakes  and  marshes,  it  flows  slowly  on- 
wards to  the  south. 

Sometimes  quietly  gliding  along  the  argillaceous  bed 
which  nature  has  assigned  to  it ;  sometimes  swoln  by 
storms,  the  Mississippi  waters  2500  miles  in  its  coursef. 
At  the  distance  of  1364  miles  from  its  mouth  this  river 
attains  an  average  depth  of  fifteen  feet;  andit  is  navigated 
by  vessels  of  300  tons  burden  for  a  course  of  nearly  500 
miles.  Fifty-seven  large  navigable  rivers  contribute  to 
swell  the  waters  of  the  Mississippi ;  amongst  others,  the 
Missouri  which  traverses  a  space  of  2500  miles,  the  Ar- 
kansas of  1300  miles,  the  Red  River  1000  miles;  four 
whose  course  is  from  800  to  1000  miles  in  length,  viz. 
the  Illinois,  the  St.  Peter's,  the  St.  Francis,  and  the 
Moingona;  besides  a  countless  multitude  of  rivulets 
which  unite  from  all  parts  their  tributary  streams. 

The  valley  which  is  watered  by  the  Mississippi  seems 
formed  to  be  the  bed  of  this  mighty  river,  which  like  a 
god  of  antiquity,  dispenses  both  good  and  evil  in  its 
course.  On  the  shores  of  the  stream  nature  displays  an 
inexhaustible  fertility ;  in  proportion  as  you  recede  from 

*  The  Red  River. 

f  Warden's  'Description  of  the  United  States.' 

B  2 


its  banks,  the  powers  of  vegetation  languish,  the  soil 
becomes  poor,  and  the  plants  that  survive  have  a  sickly 
growth.  Nowhere  have  the  great  convulsions  of  the 
globe  left  more  evident  traces  than  in  the  valley  of  the 
Mississippi :  the  whole  aspect  of  the  country  shows  the 
powerful  effects  of  water,  both  by  its  fertility  and  by  its 
barrenness.  The  waters  of  the  primaeval  ocean  accumu- 
lated enormous  beds  of  vegetable  mould  in  the  valley, 
which  they  levelled  as  they  retired.  Upon  the  right  shore 
of  the  river  are  seen  immense  plains,  as  smooth  as  if  the 
husbandman  had  passed  over  them  with  his  roller.  As 
you  approach  the  mountains,  the  soil  becomes  more  and 
more  unequal  and  sterile;  the  ground  is,  as  it  were, 
pierced  in  a  thousand  places  by  primitive  rocks,  which 
appear  like  the  bones  of  a  skeleton  whose  flesh  is  partly 
consumed.  The  surface  of  the  earth  is  covered  with  a 
granitic  sand  and  huge  irregular  masses  of  stone,  among 
which  a  few  plants  force  their  growth,  and  give  the  ap- 
pearance of  a  green  field  covered  with  the  ruins  of  a  vast 
edifice.  These  stones  and  this  sand  discover,  on  exa- 
mination, a  perfect  analogy  with  those  which  compose  the 
arid  and  broken  summits  of  the  Rocky  Mountains.  The 
flood  of  waters  which  washed  the  soil  to  the  bottom  of 
the  valley  afterwards  carried  away  portions  of  the  rocks 
themselves ;  and  these,  dashed  and  bruised  against  the 
neighbouring  cliffs,  were  left  scattered  like  wrecks  at 
their  feet*.' 

The  Valley  of  the  Mississippi  is,  upon  the  whole,  the 
most  magnificent  dwelling-place  prepared  by  God  for 
man's  abode ;  and  yet  it  may  be  said  that  at  present  it 
is  but  a  mighty  desert. 

On  the  eastern  side  of  the  AUeghanies,  between  the 
base  of  these  mountains  and  the  Atlantic  Ocean,  there  lies 
a  long  ridge  of  rocks  and  sand,  which  the  sea  appears  to 
*  See  Appendix  A. 


have  left  behind  as  it  retired.  The  mean  breadth  of  this 
territory  does  not  exceed  one  hundred  miles;  but  it  isj^ 
about  nine  hundred  miles  in  length.  This  part  of  the 
American  continent  has  a  soil  which  offers  every  ob- 
stacle to  the  husbandman,  and  its  vegetation  is  scanty 
and  unvaried. 

Upon  this  inhospitable  coast  the  first  united  efforts  of 
human  industry  were  made.  This  tongue  of  arid  land 
was  the  cradle  of  those  English  colonies  which  were  de- 
stined one  day  to  become  the  United  States  of  America. 
The  centre  of  power  still  remains  there ;  whilst  in  the 
backward  States  the  true  elements  of  the  great  people 
to  whom  the  future  control  of  the  continent  belongs 
are  secretly  springing  up. 

When  the  Europeans  first  landed  on  the  shores  of  the 
Antilles,  and  afterwards  on  the  coast  of  South  America, 
they  thought  themselves  transported  into  those  fabulous 
regions  of  which  poets  had  sung.  The  sea  sparkled 
with  phosphoric  light,  and  the  extraordinary  transparency 
of  its  waters  discovered  to  the  view  of  the  navigator  all 
that  had  hitherto  been  hidden  in  the  deep  abyss*.  Here 
and  there  appeared  little  islands  perfumed  with  odorife- 
rous plants,  and  resembling  baskets  of  flowers  floating 
on  the  tranquil  surface  of  the  ocean.  Every  object 
which  met  the  sight,  in  this  enchanting  region,  seemed 
prepared  to  satisfy  the  wants,  or  contribute  to  the  plea- 
sures of  man.  Almost  all  the  trees  were  loaded  with 
nourishing  fruits,  and  those  which  were  useless  as  food 
delighted  the  eye  by  the  brilliancy  and  variety  of  their 
colours.  In  groves  of  fragrant  lemon-trees,  wil;l  figs, 
flowering-myrtles,  acacias,  and  oleanders,  which  were 

*  Malte  Brun  tells  us  (vol.  v.  p.  726,)  that  the  water  of  the  Carib- 
bean sea  is  so  transparent,  that  corals  and  fish  are  discernible  at  a 
depth  of  sixty  fathoms.  The  ship  seemed  to  float  in  air,  the  navi- 
gator became  giddy  as  his  eye  penetrated  through  the  crystal  flood, 
and  beheld  submarine  gardens,  or  beds  of  shells,  or  gilded  fishes  gli- 
ding among  tufts  and  thickets  of  sea-weed. 


hung  -with  festoons  of  various  climbing  plants,  covered 

,vwith  flowers,  a  multitude  of  birds  unknown  in  Europe 

^"displayed  their  bright  plumage,  glittering  with  purple 

and  azure,  and  mingled  their  warbling  in  the  harmony 

of  a  world  teeming  with  life  and  motion*. 

Underneath  this  brilliant  exterior,  death  was  concealed. 
The  air  of  these  climates  had  so  enervating  an  influence, 
that  man,  completely  absorbed  by  present  enjoyment, 
was  rendered  regardless  of  the  future. 

North  America  appeared  under  a  very  different  as- 
pect :  there,  everything  was  grave,  serious,  and  solemn : 
it  seemed  created  to  be  the  domain  of  intelligence,  as  the 
South  was  that  of  sensual  delight.  A  turbulent  and 
foggy  ocean  washed  its  shores.  It  was  girded  round  by 
a  belt  of  granitic  rocks,  or  by  wide  plains  of  sand.  The 
foliage  of  its  woods  was  dark  and  gloomy ;  for  they  were 
composed  of  firs,  larches,  evergreen  oaks,  wild  olive- 
trees,  and  laurels. 

Beyond  this  outer  belt  lay  the  thick  shades  of  the 
central  forests,  where  the  largest  trees  which  are  produ- 
ced in  the  two  hemispheres  grow  side  by  side.  The 
plane,  the  catalpa,  the  sugar-maple,  and  the  Virginian 
poplar,  mingled  their  branches  with  those  of  the  oak, 
the  beech,  and  the  lime. 

In  these,  as  in  the  forests  of  the  Old  World,  destruc- 
tion was  perpetually  going  on.  The  ruins  of  vegetation 
were  heaped  upon  each  other ;  but  there  was  no  labour- 
ing hand  to  remove  them,  and  their  decay  was  not  ra- 
pid enough  to  make  room  for  the  continual  work  of  re- 
production. Climbing-plants,  grasses,  and  other  herbs 
forced  their  way  through  the  mass  of  dying  trees  ;  they 
crept  along  their  bending  trunks,  found  nourishment  in 
their  dusty  cavities,  and  a  passage  beneath  the  lifeless 
bark.  Thus  decay  gave  its  assistance  to  life,  and  their 
respective  productions  were  mingled  together.  The 
*  See  Appendix  B. 


depths  of  these  forests  were  gloomy  and  obscure,  and  a 
thousand  rivulets,  undirected  in  their  course  by  human, 
industry,  preserved  in  them  a  constant  moisture.  IrT 
was  rare  to  meet  with  flowers,  wild  fruits,  or  birds,  be- 
neath their  shades.  The  fall  of  a  tree  overthrown  by 
age,  the  rushing  torrent  of  a  cataract,  the  lowing  of  the 
buffalo,  and  the  howling  of  the  wind,  were  the  only 
sounds  which  broke  the  silence  of  nature. 

To  the  east  of  the  great  river,  the  woods  almost  dis- 
appeared ;  in  their  stead  were  seen  prairies  of  immense 
extent.  Whether  Nature  in  her  infinite  variety  had  de- 
nied the  germs  of  trees  to  these  fertile  plains,  or  whether 
they  had  once  been  covered  with  forests,  subsequently 
destroyed  by  the  hand  of  man,  is  a  question  which  neither 
tradition  nor  scientific  research  has  been  able  to  resolve. 

These  immense  deserts  were  not,  however,  devoid  of 
human  inhabitants.  Some  wandering  tribes  had  been 
for  ages  scattered  among  the  forest  shades  or  the  green 
pastures  of  the  prairie.  From  the  mouth  of  the  St.  Law- 
rence to  the  Delta  of  the  Mississippi,  and  from  the  At- 
lantic to  the  Pacific  Ocean,  these  savages  possessed  cer- 
tain points  of  resemblance  which  bore  witness  of  their 
common  origin :  but  at  the  same  time  they  differed  from 
all  other  known  races  of  men*:  they  were  neither  white 
like  the  Europeans,  nor  yellow  like  most  of  the  Asiatics, 
nor  black  like  the  negroes.  Their  skin  was  reddish 
browrn,  their  hair  long  and  shining,  their  lips  thin,  and 

*  With  the  progress  of  discovery,  some  resemblance  has  been  found 
to  exist  between  the  physical  conformation,  the  language  and  the 
habits  of  the  Indians  of  North  America,  and  those  of  the  Tongous, 
Mantchous,  Moguls,  Tatars,  and  other  wandering  tribes  of  Asia. 
The  land  occupied  by  these  tribes  is  not  very  distant  from  Behring's 
Strait;  which  allows  of  the  supposition,  that  at  a  remote  period  they 
gave  inhabitants  to  the  desert  continent  of  America.  But  this  is  a 
point  which  has  not  yet  been  clearly  elucidated  by  science.  See 
Malte  Brun,  vol.  v.;  the  works  of  Humboldt ;  Fischer,  '  Conjec- 
ture sur  1'Origin  des  Americains ';  Adar,  '  History  of  the  American 
Indians'. 


8 

their  cheek-bones  very  prominent.  The  languages  spo- 
ken by  the  North  American  tribes  were  various  as  far 
as  regarded  their  words,  but  they  were  subject  to  the 
same  grammatical  rules.  These  rules  differed  in  several 
points  from  such  as  had  been  observed  to  govern  the 
origin  of  language. 

The  idiom  of  the  Americans  seemed  to  be  the  product  of 
new  combinations ;  andbespoke  an  effort  of  the  understand- 
ing of  which  the  Indians  of  our  days  would  be  incapable*. 

The  social  state  of  these  tribes  differed  also  in  many 
respects  from  all  that  was  seen  in  the  Old  World.  They 
seemed  to  have  multiplied  freely  in  the  midst  of  their 
deserts,  without  coming  in  contact  with  other  races 
more  civilized  than  their  own.  Accordingly,  they  ex- 
hibited none  of  those  indistinct,  incoherent  notions  of 
right  and  wrong,  none  of  that  deep  corruption  of  man- 
ners which  is  usually  joined  with  ignorance  and  rude- 
ness among  nations  which,  after  advancing  to  civiliza- 
tion, have  relapsed  into  a  state  of  barbarism.  The  In- 
dian was  indebted  to  no  one  but  himself;  his  virtues,, 
his  vices,  and  his  prejudices  were  his  own  work;  he 
had  grown  up  in  the  wild  independence  of  his  nature. 

If,  in  polished  countries,  the  lowest  of  the  people  are. 
rude  and  uncivil,  it  is  not  merely  because  they  are  poor 
and  ignorant,  but  that,  being  so,  they  are  in  daily  con- 
tact with  rich  and  enlightened  men.  The  sight  of  their 
own  hard  lot  and  of  their  weakness,  which  are  daily  con- 
trasted with  the  happiness  and  power  of  some  of  their 
fellow-creatures,  excites  in  their  hearts  at  the  same  time 
the  sentiments  of  anger  and  of  fear :  the  consciousness  of 
their  inferiority  and  of  their  dependence  irritates  while 
it  humiliates  them.  This  state  of  mind  displays  itself 
in  their  manners  and  language ;  they  are  at  once  inso- 
lent and  servile.  The  truth  of  this  is  easily  proved  by 
*  See  Appendix  C. 


observation;  the  people  are  more  rude  in  aristocratic 
countries  than  elsewhere ;  in  opulent  cities  than  in  rural 
districts.  In  those  places  where  the  rich  and  powerful  are 
assembled  together,  the  weak  and  the  indigent  feel  them- 
selves oppressed  by  their  inferior  condition.  Unable  to 
perceive  a  single  chance  of  regaining  their  equality,  they 
give  up  to  despair,  and  allow  themselves  to  fall  below 
the  dignity  of  human  nature. 

This  unfortunate  effect  of  the  disparity  of  conditions 
is  not  observable  in  savage  life :  the  Indians,  although 
they  are  ignorant  and  poor,  are  equal  and  free. 

At  the  period  when  Europeans  first  came  among 
them,  the  natives  of  North  America  were  ignorant  of 
the  value  of  riches,  and  indifferent  to  the  enjoyments 
which  civilized  man  procures  to  himself  by  their  means. 
Nevertheless  there  was  nothing  coarse  in  their  demean- 
our ;  they  practised  an  habitual  reserve,  and  a  kind  of 
aristocratic  politeness. 

Mild  and  hospitable  when  at  peace,  though  merciless 
in  war  beyond  any  known  degree  of  human  ferocity,  the 
Indian  would  expose  himself  to  die  of  hunger  in  order 
to  succour  the  stranger  wrho  asked  admittance  by  night 
at  the  door  of  his  hut, — yet  he  could  tear  in  pieces  with 
his  hands  the  still  quivering  limbs  of  his  prisoner.  The 
famous  republics  of  antiquity  never  gave  examples  of 
more  unshaken  courage,  more  haughty  spirits,  or  more 
intractable  love  of  independence,  than  wTere  hidden  in 
former  times  among  the  wild  forests  of  the  New  World*. 

*  We  learn  from  President  Jefferson's  'Notes  upon  Virginia',  p. 
148,  that  among  the  Iroquois,  when  attacked  by  a  superior  force, 
aged  men  refused  to  fly,  or  to  survive  the  destruction  of  their  country  ; 
and  they  braved  death  like  the  ancient  Romans  when  their  capital 
was  sacked  by  the  Gauls.  Further  on,  p.  150,  he  tells  us  that  there 
is  no  example  of  an  Indian,  who,  having  fallen  into  the  hands  of  his 
enemies,  begged  for  his  life  ;  on  the  contrary,  the  captive  sought  to 
obtain  death  at  the  hands  of  his  conquerors  by  the  use  of  insult  and 
provocation. 

B  5 


The  Europeans  produced  no  great  impression  when 
they  landed  upon  the  shores  of  North  America :  their 
presence  engendered  neither  envy  nor  fear.  What  in- 
fluence could  they  possess  over  such  men  as  we  have  de- 
scribed ?  The  Indian  could  live  without  wants,  suffer 
without  complaint,  and  pour  out  his  death-song  at  the 
stake*.  Like  all  the  other  members  of  the  great  human 
family,  these  savages  believed  in  the  existence  of  a  bet- 
ter world,  and  adored,  under  different  names,  God,  the 
creator  of  the  universe.  Their  notions  on  the  great  in- 
tellectual truths  were  in  general  simple  and  philpso- 
phicalf. 

Although  we  have  here  traced  the  character  of  a  pri- 
mitive people,  yet  it  cannot  be  doubted  that  another 
people,  more  civilized  and  more  advanced  in  all  respects, 
had  preceded  it  in  the  same  regions. 

An  obscure  tradition  which  prevailed  among  the  In- 
dians, to  the  north  of  the  Atlantic,  informs  us  that  these 
very  tribes  formerly  dwelt  on  the  west  side  of  the  Missis- 
sippi. Along  the  banks  of  the  Ohio,  and  throughout  the 
central  valley,  there  are  frequently  found,  at  this  day, 
tumuli  raised  by  the  hands  of  men.  On  exploring  these 
heaps  of  earth  to  their  centre,  it  is  usual  to  meet  with 
human  bones,  strange  instruments,  arms  and  utensils 
of  all  kinds,  made  of  a  metal,  or  destined  for  purposes, 
unknown  to  the  present  race. 

The  Indians  of  our  time  are  unable  to  give  any  in- 
formation relative  to  the  history  of  this  unknown  people. 
Neither  did  those  who  lived  three  hundred  years  ago, 

*  See  '  Histoire  cle  la  Louisiane  ',  by  Lepage  Dupratz ;  Charlevoix, 
'  Histoire  de  la  Nouvelle  France  ';  '  Lettres  du  Rev.  G.  Hecwelder  '; 
'  Transactions  of  the  American  Philosophical  Society',  v.  1.;  Jeffer- 
son's '  Notes  on  Virginia  ',  p.  135 — 190.  What  is  said  by  Jefferson 
is  of  especial  weight,  on  account  of  the  personal  merit  of  the  writer, 
nf  his  peculiar  position,  and  of  the  matter-of-fact  age  in  which  he 

ed. 

f  See  Appendix  D. 


11 

when  America  was  first  discovered,  leave  any  accounts 
from  which  even  an  hypothesis  could  be  formed.  Tra- 
dition,— that  perishable,  yet  ever-renewed  monument  of 
the  pristine  world, — throws  no  light  upon  the  subject. 
It  is  an  undoubted  fact,  however,  that  in  this  part  of  the 
globe  thousands  of  our  fellow-beings  had  lived.  When 
they  came  hither,  what  was  their  origin,  their  destiny, 
their  history,  and  how  they  perished,  no  one  pan  tell. 

How  strange  does  it  appear  that  nations  have  existed, 
and  afterwards  so  completely  disappeared  from  the  earth 
that  the  remembrance  of  their  very  names  is  effaced ! 
their  languages  are  lost ;  their  glory  is  vanished  like  a 
sound  without  an  echo ;  but  perhaps  there  is  not  one 
which  has  not  left  behind  it  a  tomb  in  memory  of  its  pas- 
sage. The  most  durable  monument  of  human  labour  is  that 
which  recalls  the  wretchedness  and  nothingness  of  man. 

Although  the  vast  country  which  we  have  been  de- 
scribing was  inhabited  by  many  indigenous  tribes,  it 
may  justly  be  said  at  the  time  of  its  discovery  by  Europe- 
ans to  have  formed  one  great  desert.  The  Indians  oc- 
cupied, without  possessing  it.  It  is  by  agricultural  la- 
bour that  man  appropriates  the  soil,  and  the  early  in- 
habitants of  North  America  lived  by  the  produce  of  the 
chase.  Their  implacable  prejudices,  their  uncontrolled 
passions,  their  vices,  and  still  more  perhaps  their  savage 
virtues,  consigned  them  to  inevitable  destruction.  The 
ruin  of  these  nations  began  from  the  day  when  Europe- 
ans landed  on  their  shores :  it  has  proceeded  ever  since, 
and  we  are  now  witnessing  the  completion  of  it. 
They  seem  to  have  been  placed  by  Providence  amidst 
the  riches  of  the  New  World  to  enjoy  them  for  a 
season,  and  then  surrender  them.  Those  coasts,  so 
admirably  adapted  for  commerce  and  industry ;  those 
wide  and  deep  rivers ;  that  inexhaustible  valley  of  the 
Mississippi ;  the  whole  continent,  in  short,  seemed  pre- 
pared to  be  the  abode  of  a  great  nation,  yet  unborn. 


12 

In  that  land  the  great  experiment  was  to  be  made  by 
civilized  man,  of  the  attempt  to  construct  society  upon 
a  new  basis ;  and  it  was  there,  for  the  first  time,  that 
theories  hitherto  unknown,  or  deemed  impracticable, 
were  to  exhibit  a  spectacle  for  which  the  world  had  not 
been  prepared  by  the  history  of  the  past. 


CHAPTER  II. 

ORIGIN  OF  THE  ANGLO-AMERICANS,  AND  ITS  IM- 
PORTANCE IN  RELATION  TO  THEIR  FUTURE  CON- 
DITION. 

Utility  of  knowing  the  origin  of  nations  in  order  to  understand  their 
social  condition  and  their  laws. — America  the  only  country  in 
which  the  starting-point  of  a  great  people  has  been  clearly  obser- 
vable.— In  what  respects  all  who  emigrated  to  British  America 
were  similar. — In  what  they  differed. — Remark  applicable  to  all 
the  Europeans  who  established  themselves  on  the  shores  of  the 
New  World. — Colonization  of  Virginia. — Colonization  of  New 
England. — Original  character  of  the  first  inhabitants  of  New 
England. — Their  arrival. — Their  first  laws. — -Their  social  con- 
tract.— Penal  code  borrowed  from  the  Hebrew  legislation. — Reli- 
gious fervour. — Republican  spirit. — Intimate  union  of  the  spirit  of 
religion  with  the  spirit  of  liberty. 

AFTER  the  birth  of  a  human  being  his  early  years  are 
obscurely  spent  in  the  toils  or  pleasures  of  childhood. 
As  he  grows  up  the  world  receives  him,  when  his  man- 
hood begins,  and  he  enters  into  contact  with  his  fellows. 
He  is  then  studied  for  the  first  time,  and  it  is  imagined 
that  the  germ  of  the  vices  and  the  virtues  of  his  maturer 
years  is  then  formed. 

This,  if  I  am  not  mistaken,  is  a  great  error.  We 
must  begin  higher  up ;  we  must  watch  the  infant  in  his 
mother's  arms ;  we  must  see  the  first  images  which  the 
external  world  casts  upon  the  dark  mirror  of  his  mind ; 


13 

the  first  occurrences  which  he  witnesses  ;  we  must  hear 
the  first  words  which  awaken  the  sleeping  powers  of 
hought,  and  stand  by  his  earliest  efforts,,  if  we  would 
understand  the  prejudices,  the  habits,  and  the  passions 
which  will  rule  his  life.  The  entire  man  is,  so  to  speak, 
to  be  seen  in  the  cradle  of  the  child. 

The  growth  of  nations  presents  something  analogous 
to  this  ;  they  all  bear  some  marks  of  their  origin ;  and 
the  circumstances  which  accompanied  their  birth  and  con- 
tributed to  their  rise,  affect  the  whole  term  of  their  being. 

If  we  were  able  to  go  back  to  the  elements  of  states, 
and  to  examine  the  oldest  monuments  of  their  history, 
I  doubt  not  that  we  should  discover  the  primary  cause  of 
the  prejudices,  the  habits,  the  ruling  passions,  and  in 
short  of  all  that  constitutes  wrhat  is  called  the  national 
character :  we  should  then  find  the  explanation  of  cer- 
tain customs  which  now  seem  at  variance  with  prevail- 
ing manners,  of  such  lawrs  as  conflict  with  established 
principles,  and  of  such  incoherent  opinions  as  are  here 
and  there  to  be  met  with  in  society,  like  those  fragments 
of  broken  chains  which  we  sometimes  see  hanging  from 
the  vault  of  an  edifice,  and  supporting  nothing.  This 
might  explain  the  destinies  of  certain  nations  which 
seem  borne  along  by  an  unknown  force  to  ends  of  which 
they  themselves  are  ignorant.  But  hitherto  facts  have 
been  wanting  to  researches  of  this  kind :  the  spirit  of 
inquiry  has  only  come  upon  communities  in  their  latter 
days  ;  and  when  they  at  length  turned  their  attention  to 
contemplate  their  origin,  time  had  already  obscured  it, 
or  ignorance  and  pride  adorned  it  with  truth-concealing 
fables. 

America  is  the  only  country  in  which  it  has  been  pos- 
sible to  witness  the  natural  and  tranquil  growth  of  so- 
ciety, and  where  the  influence  exercised  on  the  future 
condition  of  states  by  their  origin,  is  clearly  distinguish- 
able. 


14 

At  the  period  when  the  peoples  of  Europe  landed  in 
the  New  World,  their  national  characteristics  were  al- 
ready completely  formed ;  each  of  them  had  a  physio- 
gnomy of  its  own  ;  and  as  they  had  already  attained  that 
stage  of  civilization  at  which  men  are  led  to  study  them- 
selves, they  have  transmitted  to  us  a  faithful  picture  of 
their  opinions,  their  manners,  and  their  laws.  The  men 
of  the  sixteenth  century  are  almost  as  well  known  to  us 
as  our  contemporaries.  America  consequently  exhibits 
in  the  broad  light  of  day  the  phaenomena  which  the  ig- 
norance or  rudeness  of  earlier  ages  conceals  from  our  re- 
searches. Near  enough  to  the  time  when  the  states  of 
America  were  founded  to  be  accurately  acquainted  with 
their  elements,  and  sufficiently  removed  from  that  pe- 
riod to  judge  of  some  of  their  results,  the  men  of  our 
own  day  seemed  destined  to  see  further  than  their  pre- 
decessors into  the  series  of  human  events.  Providence 
has  given  us  a  torch  which  our  forefathers  did  not  pos- 
sess, and  has  allowed  us  to  discern  fundamental  causes  in 
the  history  of  the  world  which  the  obscurity  of  the  past 
concealed  from  them. 

If  we  carefully  examine  the  social  and  political  state 
of  America  after  having  studied  its  history,  we  shall  re- 
main perfectly  convinced  that  not  an  opinion,  not  a  cus- 
tom, not  a  law,  I  may  even  say  not  an  event,  is  upon  re- 
cord wrhich  the  origin  of  that  people  will  not  explain. 
The  readers  of  this  book  will  find  the  germ  of  all  that  is 
to  follow  in  the  present  chapter,  and  the  key  to  almost 
the  whole  work. 

The  emigrants  who  came  at  different  periods  to  occupy 
the  territory  now  covered  by  the  American  Union,  dif- 
fered from  each  other  in  many  respects ;  their  aim  was 
not  the  same,  and  they  governed  themselves  on  different 
principles. 

These  men  had,  however,  certain  features  in  common, 
and  they  were  all  placed  in  an  analogous  situation.  The 


15 

tie  of  language  is  perhaps  the  strongest  and  the  most 
durable  that  can  unite  mankind.  All  the  emigrants 
spoke  the  same  tongue  ;  they  were  all  offsets  from  the 
same  people.  Born  in  a  country  which  had  been  agita- 
ted for  centuries  by  the  struggles  of  faction,  and  in  which 
ah1  parties  had  been  obliged  in  their  turn  to  place  them- 
selves under  the  protection  of  the  laws,  their  political 
education  had  been  perfected  in  this  rude  school,  and 
they  were  more  conversant  wdth  the  notions  of  right,  and 
the  principles  of  true  freedom,  than  the  greater  part  of 
their  European  contemporaries.  At  the  period  of  the 
first  emigrations,  the  parish  system,  that  fruitful  germ 
of  free  institutions,  was  deeply  rooted  in  the  habits  of 
the  English ;  and  with  it  the  doctrine  of  the  sovereignty 
of  the  people  had  been  introduced  even  into  the  bosom 
of  the  monarchy  of  the  House  of  Tudor. 

The  religious  quarrels  which  have  agitated  the  Chris- 
tian world  were  then  rife.  England  had  plunged  into 
the  new  order  of  things  with  headlong  vehemence.  The 
character  of  its  inhabitants,  wThich  had  always  been  se- 
date and  reflecting,  became  argumentative  and  austere. 
General  information  had  been  increased  by  intellectual 
debate,  and  the  mind  had  received  a  deeper  cultivation. 
Whilst  religion  was  the  topic  of  discussion,  the  morals 
of  the  people  were  reformed.  All  these  national  features 
are  more  or  less  discoverable  in  the  physiognomy  of 
those  adventurers  who  came  to  seek  a  new  home  on  the 
opposite  shores  of  the  Atlantic. 

Another  remark,  to  which  we  shall  hereafter  have  oc- 
casion to  recur,  is  applicable  not  only  to  the  English, 
but  to  the  French,  the  Spaniards,  and  all  the  Europeans 
who  successively  established  themselves  in  the  New 
World.  All  these  European  colonies  contained  the  ele- 
ments, if  not  the  development,  of  a  complete  democracy. 
Two  causes  led  to  this  result.  It  may  safely  be  advan- 
ced, that  on  leaving  the  mother-country  the  emigrants 


16 

had  in  general  no  notion  of  superiority  over  one  another. 
The  happy  and  the  powerful  do  not  go  into  exile,  and 
there  are  no  surer  guarantees  of  equality  among  men 
than  poverty  and  misfortune.  It  happened,  however, 
on  several  occasions  that  persons  of  rank  were  driven  to 
America  by  political  and  religious  quarrels.  Laws  were 
made  to  establish  a  gradation  of  ranks ;  but  it  was  soon 
found  that  the  soil  of  America  was  entirely  opposed  to 
a  territorial  aristocracy.  To  bring  that  refractory  land 
into  cultivation,  the  constant  and  interested  exertions  of 
the  owner  himself  were  necessary ;  and  when  the  ground 
was  prepared,  its  produce  was  found  to  be  insufficient  to 
enrich  a  master  and  a  farmer  at  the  same  time.  The 
land  was  then  naturally  broken  up  into  small  portions, 
which  the  proprietor  cultivated  for  himself.  Land  is  the 
basis  of  an  aristocracy,  which  clings  to  the  soil  that  sup- 
ports it ;  for  it  is  not  by  privileges  alone,  nor  by  birth, 
but  by  landed  property  handed  down  from  generation  to 
generation,  that  an  aristocracy  is  constituted.  A  nation 
may  present  immense  fortunes  and  extreme  wretched- 
ness ;  but  unless  those  fortunes  are  territorial,  there  is 
no  aristocracy,  but  simply  the  class  of  the  rich  and  that 
of  the  poor. 

All  the  British  colonies  had  then  a  great  degree  of 
similarity  at  the  epoch  of  their  settlement.  All  of  them, 
from  their  first  beginning,  seemed  destined  to  witness 
the  growth,  not  of  the  aristocratic  liberty  of  their  mother- 
country,  but  of  that  freedom  of  the  middle  and  lower 
orders  of  which  the  history  of  the  world  had  as  yet  fur- 
nished no  complete  example. 

In  this  general  uniformity  several  striking  differences 
were  however  discernible,  which  it  is  necessary  to  point 
out.  Two  branches  may  be  distinguished  in  the  Anglo- 
American  family  which  have  hitherto  grown  up  without 
entirely  commingling ;  the  one  in  the  South,  the  other 
in  the  North. 


17 

Virginia  received  the  first  English  colony ;  the  emi- 
grants took  possession  of  it  in  1607-  The  idea  that 
mines  of  gold  and  silver  are  the  sources  of  national 
wealth  was  at  that  time  singularly  prevalent  in  Europe ; 
a  fatal  delusion,  which  has  done  more  to  impoverish  the 
nations  which  adopted  it,  and  has  cost  more  lives  in 
America,  than  the  united  influence  of  war  and  bad  laws. 
The  men  sent  to  Virginia*  were  seekers  of  gold,  adven- 
turers without  resources  and  without  character,  whose 
turbulent  and  restless  spirit  endangered  the  infant 
colony  f  and  rendered  its  progress  uncertain.  The  arti- 
zans  and  agriculturists  arrived  afterwards;  and  although 
they  were  a  more  moral  and  orderly  race  of  men,  they 
were  in  nowise  above  the  level  of  the  inferior  classes  in 
England  J.  No  lofty  conceptions,  no  intellectual  system 
directed  the  foundation  of  these  new  settlements.  The 
colony  was  scarcely  established  when  slavery  was  intro- 
duced §,  and  this  was  the  main  circumstance  which  has 
exercised  so  prodigious  an  influence  on  the  character, 
the  laws,  and  all  the  future  prospects  of  the  South. 

Slavery,  as  we  shall  afterwards  show,  dishonours  la- 
bour ;  it  introduces  idleness  into  society,  and,  with  idle- 

*  The  charter  granted  by  the  Crown  of  England  in  1609  stipula- 
ted, amongst  other  conditions,  that  the  adventurers  should  pay  to  the 
Crown  a  fifth  of  the  produce  of  all  gold  and  silver  mines.  See  Mar- 
shall's '  Life  of  Washington  ',  vol.  i.  p.  18 — 66. 

f  A  large  portion  of  the  adventurers,  says  Stith,  (History  of  Vir- 
ginia,) were  unprincipled  young  men  of  family,  whom  their  parents 
were  glad  to  ship  off,  discharged  servants,  fraudulent  bankrupts,  or 
debauchees  :  and  others  of  the  same  class,  people  more  apt  to  pillage 
and  destroy  than  to  assist  the  settlement,  were  the  seditious  chiefs  who 
easily  led  this  band  into  every  kind  of  extravagance  and  excess.  See 
for  the  history  of  Virginia  the  following  works  : — 

'  History  of  Virginia,  from  the  first  Settlements  in  the  year  1624  ', 
by  Smith. 

'  History  of  Virginia  ',  by  William  Stith. 

'  History  of  Virginia,  from  the  earliest  period  ',  by  Beverley. 

J  It  was  not  till  some  time  later  that  a  certain  number  of  rich 
English  capitalists  came  to  fix  themselves  in  the  colony. 

§  Slavery  was  introduced  about  the  year  1 620  by  a  Dutch  vessel 
•which  landed  twenty  negroes  on  the  banks  of  the  river  James.  See 
Chalmer. 


18 

ness,  ignorance  and  pride,  luxury  and  distress.  It  ener- 
vates the  powers  of  the  mind,  and  benumbs  the  activity 
of  man.  The  influence  of  slavery,  united  to  the  English 
character,  explains  the  manners  and  the  social  condition 
of  the  Southern  States. 

In  the  North,  the  same  English  foundation  was  modi- 
fied by  the  most  opposite  shades  of  character ;  and  here 
I  may  be  allowed  to  enter  into  some  details.  The  two 
or  three  main  ideas  which  constitute  the  basis  of  the 
social  theory  of  the  United  States  were  first  combined 
in  the  Northern  British  colonies,  more  generally  deno- 
minated the  states  of^New  England*.  The  principles  of 
New  England  spread  at  first  to  the  neighbouring  states ; 
they  then  passed  successively  to  the  more  distant  ones  ; 
and  at  length  they  imbued  the  whole  Confederation. 
They  now  extend  their  influence  beyond  its  limits  over 
the  whole  American  world.  The  civilization  of  New 
England  has  been  like  a  beacon  lit  upon  a  hill,  which 
after  it  has  diffused  its  warmth  around,  tinges  the  distant 
horizon  with  its  glow. 

The  foundation  of  New  England  was  a  novel  spectacle, 
and  all  the  circumstances  attending  it  were  singular  and 
original.  The  large  majority  of  colonies  have  been  first 
inhabited  either  by  men  without  education  and  without 
resources,  driven  by  their  poverty  and  their  misconduct 
from  the  land  which  gave  them  birth,  or  by  speculators 
and  adventurers  greedy  of  gain.  Some  settlements  can- 
not even  boast  so  honourable  an  origin ;  St.  Domingo 
was  founded  by  buccaneers;  and,  at  the  present  day^ 
the  criminal  courts  of  England  supply  the  population  of 
Australia. 

The  settlers  who  established  themselves  on  the  shores 
of  New  England  all  belonged  to  the  more  independent 

*  The  States  of  New  England  are  those  situated  to  the  east  of  the 
Hudson;  they  are  now  six  in  number:  1.  Connecticut;  2.  Rhode 
Island ;  3.  Massachussets;  4.  Vermont;  5.  New  Hampshire;  6. 
Maine. 


19 

classes  of  their  native  country.  Their  union  on  the  soil 
of  America  at  once  presented  the  singular  phenomenon 
of  a  society  containing  neither  lords  nor  common  people, 
neither  rich  nor  poor.  These  men  possessed,  in  propor- 
tion to  their  number,  a  greater  mass  of  intelligence  than 
is  to  be  found  in  any  European  nation  of  our  own  time. 
All,  without  a  single  exception,  had  received  a  good 
education,  and  many  of  them  were  known  in  Europe  for 
their  talents  and  their  acquirements.  The  other  colonies 
had  been  founded  by  adventurers  without  family ;  the 
emigrants  of  New  England  brought  with  them  the  best 
elements  of  order  and  morality,  they  landed  in  the  desert 
accompanied  by  their  wives  and  children.  But  what 
most  especially  distinguished  them  was  the  aim  of  their 
undertaking.  They  had  not  been  obliged  by  necessity 
to  leave  the  country,  the  social  position  they  abandoned 
was  one  to  be  regretted,  and  their  means  of  subsistence 
were  certain.  Nor  did  they  cross  the  Atlantic  to  im- 
prove their  situation  or  to  increase  their  wealth  ;  the  call 
which  summoned  them  from  the  comforts  of  their  homes 
was  purely  intellectual ;  and  in  facing  the  inevitable  suf- 
ferings of  exile,  their  object  was  the  triumph  of  an  idea. 
The  emigrants,  or,  as  they  deservedly  styled  them- 
selves, the  Pilgrims,  belonged  to  that  English  sect,  the 
austerity  of  whose  principles  had  acquired  for  them  the 
name  of  Puritans.  Puritanism  was  not  merely  a  reli- 
gious doctrine,  but  it  corresponded  in  many  points  with 
the  most  absolute  democratic  and  republican  theories. 
It  was  this  tendency  which  had  aroused  its  most  danger- 
ous adversaries.  Persecuted  by  the  Government  of  the 
mother-country,  and  disgusted  by  the  habits  of  a  society 
opposed  to  the  rigour  of  their  own  principles,  the  Puri- 
tans wrent  forth  to  seek  some  rude  and  unfrequented 
part  of  the  world,  where  they  could  live  according  to 
their  own  opinions,  and  worship  God  in  freedom. 


20 

A  few  quotations  will  throw  more   light  upon  the 
spirit  of  these  pious  adventurers  than  all  we  can  say  of 
them.     Nathaniel  Morton*,  the   historian    of  the  first 
years  of  the  settlement,  thus  opens  his  subject : 
"  Gentle  Reader, 

ee  I  have  for  some  length  of  time  looked  upon  it  as  a 
duty  incumbent,  especially  on  the  immediate  successors 
of  those  that  have  had  so  large  experience  of  those  many 
memorable  and  signal!  demonstrations  of  God's  good- 
ness, viz.  the  first  beginners  of  this  Plantation  in  New 
England,  to  commit  to  writing  his  gracious  dispensa- 
tions on  that  behalf ;  having  so  many  inducements  there- 
unto, not  onely  otherwise,  but  so  plentifully  in  the  Sa- 
cred Scriptures :  that  so,  what  we  have  seen,  and  what 
our  fathers  have  told  us,  (Psalm  Ixxviii.  3,  4,)  we  may 
not  hide  from  our  children,  shewing  to  the  generations 
to  come  the  praises  of  the  Lord ;  that  especially  the 
seed  of  Abraham  his  servant,  and  the  children  of  Jacob 
Ills  chosen  (Psalm  cv.  5,  6,)  may  remember  his  marvel- 
lous works  in  the  beginning  and  progress  of  the  planting 
of  New  England,  his  wronders  and  the  judgements  of  his 
mouth ;  how  that  God  brought  a  vine  into  this  wilder- 
ness ;  that  He  cast  out  the  heathen,  and  planted  it ;  that 
He  made  room  for  it  and  caused  it  to  take  deep  root ; 
and  it  filled  the  land  (Psalm  Ixxx.  8,  9.).  And  not  onely 
so,  but  also  that  He  hath  guided  his  people  by  his 
strength  to  his  holy  habitation,  and  planted  them  in  the 
mountain  of  his  inheritance  in  respect  of  precious  Gos- 
pel-enjoyments :  and  that  as  especially  God  may  have 
the  glory  of  all  unto  whom  it  is  most  due  ;  so  also  some 
rays  of  glory  may  reach  the  names  of  those  blessed 
Saints,  that  were  the  main  instruments  and  the  beginning 
of  this  happy  enterprise." 

*  'New  England's  Memorial',  p.  13.     Boston,   1826.     See  also 
Hutchinson's  History  ',  vol.  ii.  p.  410. 


21 

It  is  impossible  to  read  this  opening  paragraph  with- 
out an  involuntary  feeling  of  religious  awe ;  it  breathes 
the  very  savour  of  Gospel  antiquity.  The  sincerity  of 
the  author  heightens  his  power  of  language.  The  band 
which  to  his  eyes  was  a  mere  party  of  adventurers  gone 
forth  to  seek  their  fortune  beyond  seas,  appears  to  the 
reader  as  the  germ  of  a  great  nation  wafted  by  Provi- 
dence to  a  predestined  shore. 

The  author  thus  continues  his  narrative  of  the  de- 
parture of  the  first  pilgrims. 

"  So  they  left  that  goodly  and  pleasant  city  of  Ley- 
den*,  which  had  been  their  resting-place  for  above  eleven 
years  ;  but  they  knew  that  they  were  pilgrims  and  stran- 
gers here  below,  and  looked  not  much  on  these  things, 
but  Lifted  up  their  eyes  to  Heaven,  their  dearest  country, 
where  God  hath  prepared  for  them  a  city  (Heb.  xi.  16.), 
and  therein  quieted  their  spirits.  When  they  came  to 
Delfs-Haven  they  found  the  ship  and  all  things  ready ; 
and  such  of  then*  friends  as  could  not  come  with  them, 
followed  after  them,  and  sundry  came  from  Amsterdam, 
to  see  them  shipt,  and  to  take  their  leaves  of  them.  One 
night  was  spent  with  little  sleep  with  the  most,  but  with 
friendly  entertainment  and  Christian  discourse,  and  other 
real  expressions  of  true  Christian  love.  The  next  day 
they  went  on  board,  and  their  friends  with  them,  where 
truly  doleful  was  the  sight  of  that  sad  and  mournful 
parting,  to  hear  what  sighs  and  sobs  and  prayers  did 

*  The  emigrants  were,  for  the  most  part,  godly  Christians  from 
the  North  of  England,  who  had  quitted  their  native  country  because 
they  were  "  studious  of  reformation,  and  entered  into  covenant  to 
walk  with  one  another  according  to  the  primitive  pattern  of  the  word 
of  God."  They  emigrated  to  Holland,  and  settled  in  the  city  of  Ley- 
den  in  1610,  where  they  abode,  being  lovingly  respected  by  the 
Dutch,  for  many  years :  they  left  it  in  1620  for  several  reasons,  the 
last  of  which  was  that  their  posterity  would  in  a  few  generations  be- 
come Dutch,  and  so  lose  their  interest  in  the  English  nation ;  they 
being  desirous  rather  to  enlarge  His  Majesty's  dominions,  and  to  live 
under  their  natural  prince. — Translator's  Note. 


22 

sound  amongst  them ;  what  tears  did  gush  from  every 
eye,  and  pithy  speeches  pierced  each  other's  heart,  that 
sundry  of  the  Dutch  strangers  that  stood  on  the  Key  as 
spectators  could  not  refrain  from  tears.  But  the  tide 
(which  stays  for  no  man)  calling  them  away,  that  were 
thus  loth  to  depart,  their  Reverend  Pastor  falling  down 
on  his  knees,  and  they  all  with  him,  with  watery  cheeks 
commended  them  with  most  fervent  prayers  unto  the 
Lord  and  his  blessing ;  and  then,  with  mutual  embraces 
and  many  tears,  they  took  their  leaves  one  of  another^ 
which  proved  to  be  the  last  leave  to  many  of  them." 

The  emigrants  were  about  150  in  number,  including 
the  women  and  the  children.  Their  object  was  to  plant 
a  colony  on  the  shores  of  the  Hudson ;  but  after  having 
been  driven  about  for  some  time  in  the  Atlantic  Ocean, 
they  were  forced  to  land  on  that  arid  coast  of  New  En- 
gland which  is  now  the  site  of  the  town  of  Plymouth. 
The  rock  is  still  shown  on  which  the  pilgrims  disem- 
barked*. 

"  But  before  we  pass  on,"  continues  our  historian, 
( '  let  the  reader  with  me  make  a  pause  and  seriously  con- 
sider this  poor  people's  present  condition,  the  more  to 
be  raised  up  to  admiration  of  God's  goodness  towards 
them  in  their  preservation :  for  being  now  passed  the 
vast  ocean,  and  a  sea  of  troubles  before  them  in  expec- 
tation, they  had  now  no  friends  to  welcome  them,  no 
inns  to  entertain  or  refresh  them,  no  houses,  or  much 
less  towns  to  repair  unto  to  seek  for  succour :  and  for 
the  season  it  was  winter,  and  they  that  know  the  win- 
ters of  the  country  know  them  to  be  sharp  and  violent, 

•  This  rock  is  become  an  object  of  veneration  in  the  United  States. 
I  have  seen  bits  of  it  carefully  preserved  in  several  towns  of  the 
Union.  Does  not  this  sufficiently  show  that  all  human  power  and 
greatness  is  in  the  soul  of  man  ?  Here  is  a  stone  which  the  feet  of  a 
few  outcasts  pressed  for  an  instant,  and  this  stone  becomes  famous ; 
it  is  treasured  by  a  great  nation,  its  very  dust  is  shared  as  a  relic  : 
and  what  is  become  of  the  gateways  of  a  thousand  palaces  ? 


23 

subject  to  cruel  and  fierce  storms,  dangerous  to  travel  to 
known  places,  much  more  to  search  unknown  coasts. 
Besides,  what  could  they  see  but  a  hideous  and  desolate 
wilderness,  full  of  wilde  beasts  and  wilde  men?  and 
what  multitudes  of  them  there  were,  they  then  knew 
not :  for  which  way  soever  they  turned  their  eyes  (save 
upward  to  Heaven)  they  could  have  but  little  solace  or 
content  in  respect  of  any  outward  object ;  for  summer 
being  ended,  all  things  stand  in  appearance  with  a 
weather-beaten  face,  and  the  whole  country  full  of  woods 
and  thickets  represented  a  wild  and  savage  hue  ;  if  they 
looked  behind  them,  there  was  the  mighty  ocean  which 
they  had  passed,  and  was  now  as  a  main  bar  or  gulph 
to  separate  them  from  all  the  civil  parts  of  the  world." 

It  must  not  be  imagined  that  the  piety  of  the  Puri- 
tans was  of  a  merely  speculative  kind,  or  that  it  took  no 
cognisance  of  the  course  of  worldly  affairs.  Puritanism, 
as  I  have  already  remarked,  was  scarcely  less  a  political 
than  a  religious  doctrine.  No  sooner  had  the  emigrants 
landed  on  the  barren  coast,  described  by  Nathaniel  Mor- 
ton, than  their  first  care  was  to  constitute  a  society,  by 
passing  the  following  Act*  : 

"  IN  THE  NAME  OF  GOD,  AMEN!  We,  whose  names 
are  underwritten,  the  loyal  subjects  of  our  dread  Sove- 
reign Lord  King  James,  &c.  &c.,  Having  undertaken 
for  the  glory  of  God,  and  advancement  of  the  Christian 
Faith,  and  the  honour  of  our  King  and  country,  a  voyage 
to  plant  the  first  colony  in  the  northern  parts  of  Vir- 
ginia ;  Do  by  these  presents  solemnly  and  mutually,  in 
the  presence  of  God  and  one  another,  covenant  and  com- 
bine ourselves  together  into  a  civil  body  politick,  for  our 
better  ordering  and  preservation,  and  furtherance  of  the 
ends  aforesaid :  and  by  virtue  hereof  do  enact,  constitute 
and  frame  such  just  and  equal  laws,  ordinances,  acts, 

*  '  New  England's  Memorial ',  p.  37. 


24 

constitutions,  and  officers,  from  time  to  time,  as  shall  be 
thought  most  meet  and  convenient  for  the  general  good 
of  the  Colony :  unto  which  we  promise  all  due  submis- 
sion and  obedience,"  &c.* 

This  happened  in  16203  and  from  that  time  forwards 
the  emigration  went  on.  The  religious  and  political 
passions  which  ravaged  the  British  Empire  during  the 
whole  reign  of  Charles  I.,  drove  fresh  crowds  of  secta- 
rians every  year  to  the  shores  of  America.  In  England 
the  stronghold  of  Puritanism  was  in  the  middle  classes, 
and  it  was  from  the  middle  classes  that  the  majority  of 
the  emigrants  came.  The  population  of  New  England 
increased  rapidly  ;  and  whilst  the  hierarchy  of  rank  de- 
spotically classed  the  inhabitants  of  the  mother-country, 
the  colony  continued  to  present  the  novel  spectacle  of  a 
community  homogeneous  in  all  its  parts.  A  democracy 
more  perfect  than  any  which  antiquity  had  dreamt  of, 
started  in  full  size  and  panoply  from  the  midst  of  an  an- 
cient feudal  society. 

The  English  Government  was  not  dissatisfied  with  an 
emigration  which  removed  the  elements  of  fresh  discord 
and  of  further  revolutions.  On  the  contrary,  everything 
was  done  to  encourage  it,  and  little  attention  was  paid 
to  the  destiny  of  those  who  sought  a  shelter  from  the 
rigour  of  their  country's  laws  on  the  soil  of  America. 
It  seemed  as  if  New  England  was  a  region  given  up  to 
the  dreams  of  fancy,  and  the  unrestrained  experiments 
of  innovators. 

The  English  colonies  (and  this  is  one  of  the  main 
causes  of  their  prosperity,)  have  always  enjoyed  more  in- 

*  The  emigrants  who  founded  the  state  of  Rhode  Island  in  1638, 
those  who  landed  at  New  Haven  in  1637,  the  first  settlers  in  Con- 
necticut in  1639,  and  the  founders  of  Providence  in  1640,  began  in 
like  manner  by  drawing  up  a  social  contract,  which  was  submitted 
to  the  approval  of  all  the  interested  parties.  See  '  Pitkin's  History  ', 
pp.  42  and  47. 


25 

ternal  freedom  and  more  political  independence  than  the 
colonies  of  other  nations ;  but  this  principle  of  liberty 
was  nowhere  more  extensively  applied  than  in  the  States 
of  New  England. 

It  was  generally  allowed  at  that  period  that  the  terri- 
tories of  the  New  World  belonged  to  that  European  na- 
tion which  had  been  the  first  to  discover  them.  Nearly 
the  whole  coast  of  North  America  thus  became  a  British 
possession  toward  the  end  of  the  sixteenth  century. 
The  means  used  by  the  English  Government  to  people 
these  new  domains  were  of  several  kinds ;  the  King  some- 
times appointed  a  governor  of  his  own  choice,  who  ruled 
a  portion  of  the  New  \V  orld  in  the  name  and  under  the 
immediate  orders  of  the  Crown*;  this  is  the  colonial 
system  adopted  by  the  other  countries  of  Europe.  Some- 
times grants  of  certain  tracts  were  made  by  the  Crown 
to  an  individual  or  to  a  company  f,  in  which  case  all  the 
civil  and  political  power  fell  into  the  hands  of  one  or 
more  persons,  who,  under  the  inspection  and  control 
of  the  Crown,  sold  the  lands  and  governed  the  inhabit- 
ants. Lastly,  a  third  system  consisted  in  allowing  a 
certain  number  of  emigrants  to  constitute  a  political  so- 
ciety under  the  protection  of  the  mother-country,  and  to 
govern  themselves  in  whatever  was  not  contrary  to  her 
laws.  This  mode  of  colonization,  so  remarkably  favour- 
able to  liberty,  was  only  adopted  in  New  England  J. 

*  This  was  the  case  in  the  State  of  New  York. 

f  Maryland,  the  Carolinas,  Pennsylvania,  and  New  Jersey  were 
in  this  situation. — See  Pitkin's  History,  vol.  i.  p.  11 — 31. 

I  See  the  work  entitled  '  Historical  Collection  of  State  Papers  and 
other  authentic  Documents  intended  as  materials  for  an  History  of  the 
United  States  of  America,  by  Ebenezer  Hasard,  Philadelphia,  1792,' 
for  a  great  number  of  documents  relating  to  the  commencement  of 
the  colonies,  which  are  valuable  from  their  contents  and  their  au- 
thenticity :  amongst  them  are  the  various  charters  granted  by  the 
King  of  England,  and  the  first  acts  of  the  local  governments. 

See  also  the  analysis  of  all  these  charters  given  by  Mr.  Story, 

VOL.  I.  C 


26 

In  1628*  a  charter  of  this  kind  was  granted  by  Charles 
I.  to  the  emigrants  who  went  to  form  the  colony  of  Mas- 
sachussetts.  But,  in  general,  charters  were  not  given  to 
the  colonies  of  New  England  till  they  had  acquired  a 
certain  existence.  Plymouth,  Providence,  New  Haven, 
the  State  of  Connecticut,  and  that  of  Rhode  Islandf 
were  founded  without  the  co-operation  and  almost  with- 
out the  knowledge  of  the  mother-country.  The  new 
settlers  did  not  derive  their  incorporation  from  the  head 
of  the  empire,  although  they  did  not  deny  its  supremacy ; 
they  constituted  a  society  of  their  ow  n  accord ;  and  it  was 
not  till  thirty  or  forty  years  afterwards,  under  Charles 
II.,  that  their  existence  was  legally  recognized  by  a  royal 
charter. 

This  frequently  renders  it  difficult  to  detect  the  link 
.  which  connected  the  emigrants  with  the  land  of  their 
forefathers,  in  studying  the  earliest  historical  and  legis- 
lative records  of  Newr  England.  They  perpetually  exer- 
cised the  rights  of  sovereignty  ;  they  named  their  magis- 
trates, concluded  peace  or  declared  war,  made  police 
regulations,  and  enacted  laws  as  if  their  allegiance  was 
due  only  to  GodJ.  Nothing  can  be  more  curious,  and 
at  the  same  time  more  instructive,  than  the  legislation 
of  that  period ;  it  is  there  that  the  solution  of  the  great 

Judge  of  the  Supreme  Court  of  the  United  States,  in  the  Introduction 
to  his  Commentary  on  the  Constitution  of  the  United  States.  It  re- 
sults from  these  documents  that  the  principles  of  representative  go- 
vernment and  the  external  forms  of  political  liberty  were  introduced 
into  all  the  colonies  at  their  origin.  These  principles  were  more  fully 
acted  upon  in  the  North  than  in  the  South,  but  they  existed  every- 
where. 

*  See  Pitkin's  History,  p.  35.  See  the  History  of  the  Colony  of 
Massachusetts  Bay,  by  Hutchinson,  vol.  i.  p.  9. 

+  See  Pitkin's  History,  pp.  42.  47. 

t  The  inhabitants  of  Massachusetts  had  deviated  from  the  forms 
which  are  preserved  in  the  criminal  and  civil  procedure  of  England ; 
in  1650  the  decrees  of  justice  were  not  yet  headed  by  the  royal  style. 
See  Hutchinson,  vol.  i.  p.  452. 


.        27 

social  problem  which  the  United  States  now  present  to 
the  world  is  to  be  found. 

Amongst  these  documents  we  shall  notice,  as  espe- 
cially characteristic,  the  Code  of  laws  promulgated  by 
the  little  State  of  Connecticut  in  1650*. 

The  legislators  of  Connecticut  f  begin  with  the  penal 
laws,  and,  strange  to  say,  they  borrow  their  provisions 
from  the  text  of  Holy  Writ. 

<e  Whosoever  shall  worship  any  other  God  than  the 
Lord,"  says  the  preamble  of  the  Code,  "  shall  surely  be 
put  to  death."  This  is  followed  by  ten  or  twelve  enact- 
ments of  the  same  kind,  copied  verbatim  from  the  books 
of  Exodus,  Leviticus,  and  Deuteronomy.  Blasphemy, 
sorcery,  adultery J,  and  rape  were  punished  with  death; 
an  outrage  offered  by  a  son  to  his  parents  was  to  be  ex- 
piated by  the  same  penalty.  The  legislation  of  a  rude 
and  half-civilized  people  was  thus  transferred  to  an  en- 
lightened and  moral  community.  The  consequence  was 
that  the  punishment  of  death  was  never  more  frequently 
prescribed  by  the  statute,  and  never  more  rarely  enforced 
towards  the  guilty. 

The  chief  care  of  the  legislators,  in  this  body  of  penal 
laws,  was  the  maintenance  of  orderly  conduct  and  good 
morals  in  the  community :  they  constantly  invaded  the 

\ 

*  Code  of  1650,  p.  28.  Hartford,  1830. 

f  See  also  in  Hutclrinson's  History,  vol.  i.  pp.  435.  456,  the  ana- 
lysis of  the  penal  code  adopted  in  1648  by  the  colony  of  Massachus- 
setts  :  this  code  is  drawn  up  on  the  same  principles  as  that  of  Con- 
necticut. 

I  Adultery  was  also  punished  with  death  by  the  law  of  Massachus- 
setts  ;  and  Hutchinson,  vol.  i.  p.  441,  says  that  several  persons  actu- 
ally suffered  for  this  crime.  He  quotes  a  curious  anecdote  on  this 
subject,  which  occurred  in  the  year  1663.  A  married  woman  had 
had  criminal  intercourse  with  a  young  man  :  her  husband  died,  and 
she  married  the  lover.  Several  years  had  elapsed,  when  the  public 
began  to  suspect  the  previous  intercourse  of  this  couple  :  they  were 
thrown  into  prison,  put  upon  trial,  and  very  narrowly  escaped  capital 
punishment. 

c  2 


28 

domain  of  conscience,  and  there  was  scarcely  a  sin  which 
they  did  not  subject  to  magisterial  censure.  The  reader 
is  aware  of  the  rigour  with  which  these  laws  punished 
rape  and  adultery ;  intercourse  between  unmarried  per- 
sons was  likewise  severely  repressed.  The  judge  was 
empowered  to  inflict  a  pecuniary  penalty,  a  whipping, 
or  marriage*,  on  the  misdemeanants  ;  and  if  the  records 
of  the  old  courts  of  New  Haven  may  be  believed,  prose- 
cutions of  this  kind  were  not  unfrequent.  We  find  a 
sentence,  bearing  date  the  1st  of  May  1660,  inflicting  a 
fine  and  a  reprimand  on  a  young  woman  who  was  ac- 
cused of  using  improper  language,  and  of  allowing  her- 
self to  be  kissed f.  The  code  of  1650  abounds  in  pre- 
ventive measures.  It  punishes  idleness  and  drunken- 
ness with  severity  J.  Innkeepers  are  forbidden  to  furnish 
more  than  a  certain  quantity  of  liquor  to  each  consumer ; 
and  simple  lying,  whenever  it  may  be  injurious  §,  is 
checked  by  a  fine  or  a  flogging.  In  other  places  the 
legislator,  entirely  forgetting  the  great  principles  of  re- 
ligious toleration  which  he  had  himself  upheld  in  Europe, 
renders  attendance  on  divine  service  compulsory  ||,  and 
goes  so  far  as  to  visit  with  severe  punishment^,  and  even 

*  Code  of  1650,  p.  48.  It  seems  sometimes  to  have  happened  that 
the  judges  superadded  these  punishments  to  each  other,  as  is  seen  in  a 
sentence  pronounced  in  1643,  (p.  114,  New  Haven  Antiquities,)  by 
which  Margaret  Bedford  convicted  of  loose  conduct,  was  condemned 
to  be  whipt,  and  afterwards  to  marry  Nicholas  Jemmings  her  ac- 
complice. 

f  New  Haven  Antiquities,  p.  104.  See  also  Hutchinson's  History 
for  several  causes  equally  extraordinary. 

I  Code  of  1650,  pp.  50.  57.  §  Ibid.,  p.  64. 

||  Ibid.,  p.  44. 

«[f  This  was  not  peculiar  to  Connecticut.  See,  for  instance,  the 
law  which,  on  the  13th  of  September  1644,  banished  the  Anabaptists 
from  the  State  of  Massachusetts.  (Historical  Collection  of  State 
Papers,  vol.  i.  p.  538.)  See  also  the  law  against  the  Quakers,  passed 
on  the  14th  of  October  1656.  "  Whereas,"  says  the  preamble,  "  an 
accursed  race  of  heretics  called  Quakers  has  sprung  up,"  &c.  The 
clauses  of  the  statute  inflict  a  heavy  fine  on  all  captains  of  ships  who 
should  import  Quakers  into  the  country.  The  Quakers  who  may  be 


29 

with  death,  the  Christians  who  chose  to  worship  God 
according  to  a  ritual  differing  from  his  own*.  Some- 
times indeed  the  zeal  of  his  enactments  induces  him  to 
descend  to  the  most  frivolous  particulars  :  thus  a  law  is 
to  be  found  in  the  same  Code  which  prohibits  the  use  of 
tobacco  f.  It  must  not  be  forgotten  that  these  fantas- 
tical and  vexatious  laws  were  not  imposed  by  authority, 
but  that  they  were  freely  voted  by  all  the  persons  inter- 
ested, and  that  the  manners  of  the  community  were  even 
more  austere  and  more  puritanical  than  the  laws.  In 
1649  a  solemn  association  was  formed  in  Boston  to  check 
the  worldly  luxury  of  long  hairj. 

These  errors  are  no  doubt  discreditable  to  the  human 
reason  ;  they  attest  the  inferiority  of  our  nature,  which 
is  incapable  of  laying  firm  hold  upon  what  is  true  and 
just,  and  is  often  reduced  to  the  alternative  of  two  ex- 
cesses. In  strict  connexion  with  this  penal  legislation, 
which  bears  such  striking  marks  of  a  narrow  sectarian 
spirit,  and  of  those  religious  passions  which  had  been 
warmed  by  persecution  and  were  still  fermenting  among 
the  people,  a  body  of  political  laws  is  to  be  found,  which, 
though  written  two  hundred  years  ago,  is  still  ahead  of 
the  liberties  of  our  age. 

The  general  principles  which  are  the  ground-work  of 
modern  constitutions, — principles  which  were  imper- 
fectly known  in  Europe,  and  not  completely  triumphant 
even  in  Great  Britain  in  the  seventeenth  century, — 
were  all  recognised  and  determined  by  the  laws  of  New 

found  there  shall  be  whipt  and  imprisoned  with  hard  labour.  Those 
members  of  the  sect  who  should  defend  their  opinions  shall  be  first 
fined,  then  imprisoned,  and  finally  driven  out  of  the  province. — His- 
torical Collection  of  State  Papers,  vol.  i.  p.  630. 

*  By  the  penal  law  of  Massachusetts,  any  Catholic  priest  who 
should  set  foot  in  the  colony  after  having  been  once  driven  out  of  it 
was  liable  to  capital  punishment. 

t  Code  of  1650,  p.  96. 

J  New  England's  Memorial,  p.  316.     See  Appendix,  E. 


30 

England :  the  intervention  of  the  people  in  public  affairs, 
the  free  voting  of  taxes,  the  responsibility  of  authorities, 
personal  liberty,  and  trial  by  jury,  were  all  positively 
established  without  discussion. 

From  these  fruitful  principles  consequences  have  been 
derived  and  applications  have  been  made  such  as  no  na- 
tion in  Europe  has  yet  ventured  to  attempt. 

In  Connecticut  the  electoral  body  consisted,  from  its 
origin,  of  the  whole  number  of  citizens  ;  and  this  is  rea- 
dily to  be  understood*,  when  we  recollect  that  this  peo- 
ple enjoyed  an  almost  perfect  equality  of  fortune,  and  a 
still  greater  uniformity  of  capacity f.  In  Connecticut, 
at  this  period,  all  the  executive  functionaries  were  elected, 
including  the  Governor  of  the  state  J.  The  citizens  above 
the  age  of  sixteen  were  obliged  to  bear  arms  ;  they  formed 
a  national  militia,  which  appointed  its  own  officers,  and 
was  to  hold  itself  at  all  times  in  readiness  to  march  for 
the  defence  of  the  country  §. 

In  the  laws  of  Connecticut,  as  well  as  in  all  those  of 
New  England,  we  find  the  germ  and  gradual  develop- 
ment of  that  township  independence  which  is  the  life  and 
mainspring  of  American  liberty  at  the  present  day.  The 
political  existence  of  the  majority  of  the  nations  of  Eu- 
rope commenced  in  the  superior  ranks  of  society,  and 
was  gradually  and  always  imperfectly  communicated  to 
the  different  members  of  the  social  body.  In  America, 
on  the  other  hand,  it  may  be  said  that  the  township  was 
organized  before  the  county,  the  county  before  the 
State,  the  State  before  the  Union. 

*  Constitution  of  1638,  p.  17. 

t  In  1641  the  General  Assembly  of  Rhode  Island  unanimously 
declared  that  the  government  of  the  State  was  a  democracy,  andBfcit 
the  power  was  vested  in  the  body  of  free  citizens,  who  alone  had  the 
right  to  make  the  laws  and  to  watch  their  execution.  Code  of  1650, 
p.  70. 

I  Pittin's  History,  p.  47. 

§  Constitution  of'l638,  p.  12. 


31 

In  New  England,  townships  were  completely  and  de- 
finitively constituted  as  early  as  1650.  The  independence 
of  the  township  was  the  nucleus  round  which  the  local 
interests,  passions,  rights,  and  duties  collected  and  clung. 
It  gave  scope  to  the  activity  of  a  real  political  life,  most 
thoroughly  democratic  and  republican.  The  colonies 
still  recognised  the  supremacy  of  the  mother-country ; 
monarchy  was  still  the  law  of  the  State  ;  but  the  repub- 
lic was  already  established  in  every  township. 

The  towns  named  their  own  magistrates  of  every  kind, 
rated  themselves,  and  levied  their  own  taxes*.  In  the 
townships  of  New  England  the  law  of  representation 
was  not  adopted,  but  the  affairs  of  the  community  were 
discussed,  as  at  Athens,  in  the  market-place,  by  a  gene- 
ral assembly  of  the  citizens. 

In  studying  the  laws  which  were  promulgated  at  this 
first  sera  of  the  American  republics,  it  is  impossible  not 
to  be  struck  by  the  remarkable  acquaintance  with  the 
science  of  government,  and  the  advanced  theory  of  legis- 
lation which  they  display.  The  ideas  there  formed  of 
the  duties  of  society  towards  its  members,  are  evidently 
much  loftier  and  more  comprehensive  than  those  of  the 
European  legislators  at  that  time  :  obligations  were  there 
imposed  which  were  elsewhere  slighted.  In  the  States- 
of  New  England,  from  the  first,  the  condition  of  the  poor 
was  provided  forf;  strict  measures  were  taken  for  the 
maintenance  of  roads,  and  surveyors  were  appointed  to 
attend  to  themj;  registers  were  established  in  every  pa- 
rish, in  which  the  results  of  public  deliberations,  and  the 
births,  deaths,and  marriages  of  the  citizenswere  entered§ ; 
clerks  were  directed  to  keep  these  registers  || ;  officers 
were  charged  with  the  administration  of  vacant  inherit- 

*  Code  of  1650,  p.  80.  f  Ibid.,  p.  78.  J  Ibid.,  p.  49. 

§  See  Hutchinsou's  History,  vol.  i.  p.  455. 
||  Code  of  1650,  p.  86. 


32 

ances,  and  with  the  arbitration  of  litigated  landmarks ; 
and  many  others  were  created  whose  chief  functions  were 
the  maintenance  of  public  order  in  the  community*.  The 
law  enters  into  a  thousand  useful  provisions  for  a  number 
of  social  wants  which  are  at  present  very  inadequately 
felt  in  France. 

But  it  is  by  the  attention  it  pays  to  Public  Education 
that  the  original  character  of  American  civilization  is  at 
once  placed  in  the  clearest  light.  "  It  being,"  says  the  law, 
"  one  chief  project  of  Satan  to  keep  men  from  the  know- 
ledge of  the  Scripture  by  persuading  from  the  use  of 
tongues,  to  the  end  that  learning  may  not  be  buried  in 
the  graves  of  our  forefathers,  in  church  and  common-  * 

wealth,    the  Lord  assisting  our  endeavours, t" 

Here  follow  clauses  establishing  schools  in  every  town- 
ship, and  obliging  the  inhabitants,  under  pain  of  heavy 
fines,  to  support  them.  Schools  of  a  superior  kind  were 
founded  in  the  same  manner  in  the  more  populous  di- 
stricts. The  municipal  authorities  were  bound  to  enforce 
the  sending  of  children  to  school  by  their  parents ;  they 
were  empowered  to  inflict  fines  upon  all  who  refused 
compliance ;  and  in  cases  of  continued  resistance,  society 
assumed  the  place  of  the  parent,  took  possession  of  the 
child,  and  deprived  the  father  of  those  natural  rights 
which  he  used  to  so  bad  a  purpose.  The  reader  will  un- 
doubtedly have  remarked  the  preamble  of  these  enact- 
ments :  in  America,  religion  is  the  road  to  knowledge, 
and  the  observance  of  the  Divine  laws  leads  man  to  civil 
freedom. 

If,  after  having  cast  a  rapid  glance  over  the  state  of 
American  society  in  1650,  we  turn  to  the  condition  of 
Europe,  and  more  especially  to  that  of  the  Continent,  at 
the  same  period,  we  cannot  fail  to  be  struck  with  asto- 
nishment. On  the  continent  of  Europe,  at  the  beginning 
•  Code  of  1650,  p.  40.  f  Ibid.,  p.  90. 


33 

of  the  seventeenth  century,  absolute  monarchy  had  every- 
where triumphed  over  the  ruins  of  the  oligarchical  and 
feudal  liberties  of  the  Middle  Ages.  Never  were  the  no- 
tions of  right  more  completely  confounded  than  in  the 
midst  of  the  splendour  and  literature  of  Europe ;  never 
was  there  less  political  activity  among  the  people ;  never 
were  the  principles  of  true  freedom  less  widely  circulated : 
and  at  that  very  time,  those  principles  which  were  scorned 
or  unknown  by  the  nations  of  Europe,  were  proclaimed 
in  the  deserts  of  the  New  World,  and  were  accepted  as 
the  future  creed  of  a  great  people.  The  boldest  theories 
of  the  human  reason  were  put  into  practice  by  a  com- 
munity so  humble,  that  not  a  statesman  condescended  to 
attend  to  it ;  and  a  legislation  without  a  precedent  was 
produced  offhand  by  the  imagination  of  the  citizens.  In. 
the  bosom  of  this  obscure  democracy,  which  had  as  yet 
brought  forth  neither  generals,  nor  philosophers,  nor  au- 
thors, a  man  might  stand  up  in  the  face  of  a  free  people 
and  pronounce  amidst  general  acclamations  the  following 
fine  definition  of  liberty*. 

"  Nor  would  I  have  you  to  mistake  in  the  point  of  your 
own  liberty.  There  is  a  liberty  of  corrupt  nature,  which 
is  affected  both  by  men  and  beasts  to  do  what  they  list ; 
and  this  liberty  is  inconsistent  with  authority,  impatient 
of  all  restraint ;  by  this  liberty '  sumus  omnes  deteriores'  .- 
Jt  is  the  grand  enemy  of  truth  and  peace,  and  all  the  ordi- 
nances of  God  are  bent  against  it.  But  there  is  a  civil, 
a  moral,  a  federal  liberty  which  is  the  proper  end  and 
object  of  authority;  it  is  a  liberty  for  that  only  which  is 
just  and  good :  for  this  liberty  you  are  to  stand  with  the 

*  Mather's  Magnalia  Christi  Americana,  vol.  ii.  p.  13.  This  speech 
was  made  by  Winthrop ;  he  was  accused  of  having  committed  arbi- 
trary actions  during  his  magistracy,  but  after  having  made  the  speech 
of  which  the  above  is  a  fragment,  he  was  acquitted  by  acclamation, 
and  from  that  time  forwards  he  was  always  re-elected  governor  of  the 
State.  See  Marshall,  vol.  i.  p.  166. 

C5 


34 

hazard  of  your  very  lives,  and  whatsoever  crosses  it,  is 
not  authority,  but  a  distemper  thereof.  This  liberty  is 
maintained  in  a  way  of  subjection  to  authority  ;  and  the 
authority  set  over  you  will,  in  all  administrations  for 
your  good,  be  quietly  submitted  unto  by  all  but  such  as 
have  a  disposition  to  shake  off  the  yoke  and  lose  their 
true  liberty,  by  their  murmuring  at  the  honour  and  power 
of  authority." 

The  remarks  I  have  made  will  suffice  to  display  the 
character  of  Anglo-American  civilization  in  its  true 
light.  It  is  the  result  (and  this  should  be  constantly 
present  to  the  mind)  of  two  distinct  elements,  which  in 
other  places  have  been  in  frequent  hostility,  but  which 
in  America  have  been  admirably  incorporated  and  com- 
bined with  one  another.  I  allude  to  the  spirit  of  Reli- 
gion, and  the  spirit  of  Liberty. 

The  Settlers  of  Newr  England  were  at  the  same  time 
ardent  sectarians  and  daring  innovators.  Narrow  as  the 
limits  of  some  of  their  religious  opinions  were,  they  were 
entirely  free  from  political  prejudices. 

Hence  arose  two  tendencies,  distinct  but  not  opposite, 
which  are  constantly  discernible  in  the  manners  as  well 
as  in  the  laws  of  the  country. 

It  might  be  imagined  that  men  who  sacrificed  their 
friends,  their  family,  and  their  native  land  to  a  religious 
conviction,  were  absorbed  in  the  pursuit  of  the  intellect- 
ual advantages  which  they  purchased  at  so  dear  a  rate. 
The  energy,  however,  with  which  they  strove  for  the  ac- 
quirement of  wealth,  moral  enjoyment,  and  the  comforts 
as  well  as  liberties  of  the  world,  is  scarcely  inferior  to 
that  with  which  they  devoted  themselves  to  Heaven. 

Political  principles,  and  all  human  laws  and  institu- 
tions were  moulded  and  altered  at  their  pleasure ;  the 
barriers  of  the  society  in  which  they  were  born  were 
broken  down  before  them  ;  the  old  principles  which  had 


35 

governed  the  world  for  ages  were  no  more ;  a  path  with- 
out a  term,  and  a  field  without  an  horizon  were  opened 
to  the  exploring  and  ardent  curiosity  of  man :  but  at 
the  limits  of  the  political  world  he  checks  his  researches, 
he  discreetly  lays  aside  the  use  of  his  most  formidable 
faculties,  he  no  longer  consents  to  doubt  or  to  innovate ; 
but  carefully  abstaining  from  raising  the  curtain  of  the 
sanctuary,  he  yields  with  submissive  respect  to  truths 
which  he  will  not  discuss. 

Thus  in  the  moral  wrorld,  everything  is  classed,  adapt- 
ed, decided,  and  foreseen ;  in  the  political  world  every- 
thing is  agitated,  uncertain,  and  disputed :  in  the  one  is  a 
passive,  though  a  voluntary,  obedience ;  in  the  other  an 
independence,  scornful  of  experience,  and  jealous  of 
authority. 

These  two  tendencies,  apparently  so  discrepant,  are  far 
from  conflicting;  they  advance  together,  and  mutually 
support  each  other. 

Religion  perceives  that  civil  liberty  affords  a  noble 
exercise  to  the  faculties  of  man,  and  that  the  political 
world  is  a  field  prepared  by  the  Creator  for  the  efforts 
of  the  intelligence.  Contented  with  the  freedom  and 
the  power  which  it  enjoys  in  its  own  sphere,  and  with 
the  place  which  it  occupies,  the  empire  of  religion  is 
never  more  surely  established  than  when  it  reigns  in  the 
hearts  of  men  unsupported  by  aught  beside  its  native 
strength. 

Religion  is  no  less  the  companion  of  liberty  in  all  its 
battles  and  its  triumphs ;  the  cradle  of  its  infancy,  and 
the  divine  source  of  its  claims.  The  safeguard  of  mo- 
rality is  religion,  and  morality  is  the  best  security  of  law 
as  well  as  the  surest  pledge  of  freedom*. 
*  See  Appendix,  F. 


REASONS  OF  CERTAIN    ANOMALIES  WHICH  THE   LAWS 
AND  CUSTOMS  OF  THE  ANGLO-AMERICANS  PRESENT. 

Remains  of  aristocratic  institutions  in  the  midst  of  a  complete  demo- 
cracy.— Why  ? — Distinction  carefully  to  be  drawn  between  what  is 
of  Puritanical  and  what  is  of  English  origin. 

THE  reader  is  cautioned  not  to  draw  too  general  or  too 
absolute  an  inference  from  what  has  been  said.  The 
social  condition,  the  religion,  and  the  manners  of  the 
first  emigrants  undoubtedly  exercised  an  immense  influ- 
ence on  the  destiny  of  their  new  country.  Nevertheless 
it  was  not  in  their  power  to  found  a  state  of  things 
originating  solely  in  themselves :  no  man  can  entirely 
shake  off  the  influence  of  the  past ;  and  the  settlers,  in- 
tentionally or  involuntarily,  mingled  habits  and  notions 
derived  from  their  education  and  from  the  traditions  of 
their  country  with  those  habits  and  notions  which  were 
exclusively  their  own.  To  form  a  judgement  on  the 
Anglo-Americans  of  the  present  day,  it  is  therefore  ne- 
cessary carefully  to  distinguish  what  is  of  Puritanical 
from  what  is  of  English  origin. 

Laws  and  customs  are  frequently  to  be  met  with  in 
the  United  States  which  contrast  strongly  with  all  that 
surrounds  them.  These  laws  seem  to  be  drawn  up  in  a 
spirit  contrary  to  the  prevailing  tenor  of  the  American 
legislation ;  and  these  customs  are  no  less  opposed  to  the 
general  tone  of  society.  If  the  English  colonies  had  been 
founded  in  an  age  of  darkness,  or  if  their  origin  was 
already  lost  in  the  lapse  of  years,  the  problem  would  be 
insoluble. 

I  shall  quote  a  single  example  to  illustrate  what  I  ad- 
vance. 

The  civil  and  criminal  procedure  of  the  Americans  has 


37 

only  two  means  of  action, — committal  or  bail.  The  first 
measure  taken  by  the  magistrate  is  to  exact  security 
from  the  defendant,  or,  in  case  of  refusal,  to  incarcerate 
him :  the  ground  of  the  accusation  and  the  importance 
of  the  charges  against  him  are  then  discussed. 

It  is  evident  that  a  legislation  of  this  kind  is  hostile 
to  the  poor  man,  and  favourable  only  to  the  rich.  The 
poor  man  has  not  always  a  security  to  produce,  even  in 
a  civil  cause ;  and  if  he  is  obliged  to  wait  for  justice  in 
prison,  he  is  speedily  reduced  to  distress.  The  wealthy 
individual,  on  the  contrary,  always  escapes  imprison- 
ment in  civil  causes ;  nay,  more,  he  may  readily  elude 
the  punishment  which  awaits  him  for  a  delinquency  by 
breaking  his  bail.  So  that  all  the  penalties  of  the  law 
are,  for  him,  reducible  to  fines*.  Nothing  can  be  more 
aristocratic  than  this  system  of  legislation.  Yet  in 
America  it  is  the  poor  who  make  the  law,  and  they  usu- 
ally reserve  the  greatest  social  advantages  to  themselves. 
The  explanation  of  the  phenomenon  is  to  be  found  in 
England;  the  laws  of  which  I  speak  are  English  f,  and 
the  Americans  have  retained  them,  however  repugnant 
they  may  be  to  the  tenor  of  their  legislation  and  the 
mass  of  their  ideas. 

Next  to  its  habits,  the  thing  which  a  nation  is  least 
apt  to  change  is  its  civil  legislation.  Civil  laws  are  only 
familiarly  known  to  legal  men,  whose  direct  interest  it 
is  to  maintain  them  as  they  are,  whether  good  or  bad, 
simply  because  they  themselves  are  conversant  with 
them.  The  body  of  the  nation  is  scarcely  acquainted 
with  them  :  it  merely  perceives  their  action  in  particular 
cases;  but  it  has  some  difficulty  in  seizing  their  ten- 
dency, and  obeys  them  without  reflection. 

*  Crimes  no  doubt  exist  for  which  bail  is  inadmissible,  but  they 
are  few  in  number. 

f  See  Blackstone ;  and  De  Lolme,  book  I.  chap.  x. 


38 

I  have  quoted  one  instance  where  it  would  have  been 
easy  to  adduce  a  great  number  of  others. 

The  surface  of  American  society  is,  if  I  may  use  the 
expression,  covered  with  a  layer  of  democracy,  from 
beneath  which  the  old  aristocratic  colours  sometimes 
peep. 


CHAPTER  III. 

SOCIAL,  CONDITION  OF  THE  ANGLO-AMERICANS. 

A  SOCIAL,  condition  is  commonly  the  result  of  cir- 
cumstances, sometimes  of  laws,  oftener  still  of  these  two 
causes  united ;  but  \vherever  it  exists,  it  may  justly  be 
considered  as  the  source  of  almost  all  the  laws,  the  usages, 
and  the  ideas  which  regulate  the  conduct  of  nations : 
whatever  it  does  not  produce,  it  modifies. 

It  is  therefore  necessary,  if  we  would  become  ac- 
quainted with  the  legislation  and  the  manners  of  a  na- 
tion, to  begin  by  the  study  of  its  social  condition. 


THE  STRIKING  CHARACTERISTIC  OF  THE  SOCIAL  CON- 
DITION OF  THE  ANGLO-AMERICANS  IS  ITS  ESSEN- 
TIAL DEMOCRACY. 

The  first  emigrants  of  New  England. — Their  equality. — Aristocratic 
laws  introduced  in  the  South. — Period  of  the  Revolution. — Change 
in  the  law  of  descent. — Effects  produced  by  this  change. — Demo- 
cracy carried  to  its  utmost  limits  in  the  new  States  of  the  West. — 
Equality  of  Education. 

MANY  important  observations  suggest  themselves  upon 
the  social  condition  of  the  Anglo-Americans  ;  but  there 
is  one  which  takes  precedence  of  all  the  rest.  The  so- 
cial condition  of  the  Americans  is  eminently  democratic ; 


39 

this  was  its  character  at  the  foundation  of  the  colonies, 
and  is  still  more  strongly  marked  at  the  present  day. 

I  have  stated  in  the  preceding  chapter  that  great  equal- 
ity existed  among  the  emigrants  who  settled  on  the  shores 
of  New  England.  The  germ  of  aristocracy  was  never 
planted  in  that  part  of  the  Union.  The  only  influence 
which  obtained  there  was  that  of  intellect ;  the  people 
were  used  to  reverence  certain  names  as  the  emblems  of 
knowledge  and  virtue.  Some  of  their  fellow-citizens  ac- 
quired a  power  over  the  rest  which  might  truly  have  been 
called  aristocratic,  if  it  had  been  capable  of  invariable 
transmission  from  father  to  son. 

This  was  the  state  of  things  to  the  east  of  the  Hudson : 
to  the  south-west  of  that  river,  and  in  the  direction  of 
the  Floridas,  the  case  was  different.  In  most  of  the 
States  situated  to  the  south-west  of  the  Hudson  some 
great  English  proprietors  had  settled,  wrho  had  imported 
with  them  aristocratic  principles  and  the  English  law  of 
descent.  I  have  explained  the  reasons  why  it  was  im- 
possible ever  to  establish  a  powerful  aristocracy  in  Ame- 
rica ;  these  reasons  existed  with  less  force  to  the  south- 
west of  the  Hudson.  In  the  South,  one  man,  aided  by 
slaves,  could  cultivate  a  great  extent  of  country :  it  was 
therefore  common  to  see  rich  landed  proprietors.  But 
their  influence  was  not  altogether  aristocratic  as  that  term 
is  understood  in  Europe,  since  they  possess  no  privileges; 
and  the  cultivation  of  their  estates  being  carried  on  by 
slaves,  they  had  no  tenants  depending  on  them,  and  con- 
sequently no  patronage.  Still,  the  great  proprietors  south 
of  the  Hudson  constituted  a  superior  class,  having  ideas 
and  tastes  of  its  own,  and  forming  the  centre  of  political 
action.  TJhis  kind  of  aristocracy  sympathized  with  the 
body  of  the  people,  whose  passions  and  interests  it  easily 
embraced ;  but  it  was  too  weak  and  too  short-lived  to 
excite  either  love  or  hatred  for  itself.  This  was  the  class 


40 

which  headed  the  insurrection  in  the  South,  and  fur- 
nished the  best  leaders  of  the  American  revolution. 

At  the  period  of  which  we  are  now  speaking  society 
was  shaken  to  its  centre :  the  people  in  whose  name  the 
struggle  had  taken  place,  conceived  the  desire  of  exerci- 
sing the  authority  which  it  had  acquired ;  its  democra- 
tic tendencies  were  awakened;  and  having  thrown  off 
the  yoke  of  the  mother-country,  it  aspired  to  independ- 
ence of  every  kind.  The  influence  of  individuals  gra- 
dually ceased  to  be  felt,  and  custom  and  law  united 
together  to  produce  the  same  result. 

But  the  law  of  descent  was  the  last  step  to  equality. 
I  am  surprised  that  ancient  and  modern  jurists  have  not 
attributed  to  this  law  a  greater  influence  on  human  af- 
fairs*. It  is  true  that  these  laws  belong  to  civil  affairs ; 
but  they  ought  nevertheless  to  be  placed  at  the  head  of 
all  political  institutions ;  for,  whilst  political  laws  are 
only  the  symbol  of  a  nation's  condition,  they  exercise 
an  incredible  influence  upon  its  social  state.  They  have, 
moreover,  a  sure  and  uniform  manner  of  operating  upon 
society,  affecting,  as  it  were,  generations  yet  unborn. 

Through  their  means  man  acquires  a  kind  of  preter- 
natural power  over  the  future  lot  of  his  fellow-creatures. 
When  the  legislator  has  once  regulated  the  law  of  in- 
heritance, he  may  rest  from  his  labour.  The  machine 
once  put  in  motion  will  go  on  for  ages,  and  advance,  as 
if  self-guided,  towards  a  given  point.  When  framed  in 
a  particular  manner,  this  law  unites,  draws  together,  and 
vests  property  and  power  in  a  few  hands :  its  tendency 

*  I  understand  by  the  law  of  descent  all  those  laws  whose  princi- 
pal object  it  is  to  regulate  the  distiibution  of  property  after  the  death 
of  its  owner.  The  law  of  entail  is  of  this  number  :  it  certainly  pre- 
vents the  owner  from  disposing  of  his  possessions  before  his  death  ; 
but  this  is  solely  with  the  view  of  preserving  them  entire  for  the  heir. 
The  principal  object,  therefore,  of  the  law  of  entail  is  to  regulate  the 
descent  of  property  after  the  death  of  its  owner;  its  other  provisions 
are  merely  means  to  this  end. 


41 

is  clearly  aristocratic.  On  opposite  principles  its  action 
is  still  more  rapid ;  it  divides,  distributes,  and  disperses 
both  property  and  power.  Alarmed  by  the  rapidity  of 
its  progress,  those  who  despair  of  arresting  its  motion 
endeavour  to  obstruct  it  by  difficulties  and  impediments; 
they  vainly  seek  to  counteract  its  effect  by  contrary 
efforts :  but  it  gradually  reduces  or  destroys  every  ob- 
stacle, until  by  its  incessant  activity  the  bulwarks  of  the 
influence  of  wealth  are  ground  down  to  the  fine  and 
shifting  sand  which  is  the  basis  of  democracy.  When 
the  law  of  inheritance  permits,  still  more  when  it  de- 
crees, the  equal  division  of  a  father's  property  amongst 
all  his  children,  its  effects  are  of  two  kinds :  it  is  im- 
portant to  distinguish  them  from  each  other,  although 
they  tend  to  the  same  end. 

In  virtue  of  the  law  of  partible  inheritance,  the  death 
of  every  proprietor  brings  about  a  kind  of  revolution  in 
property :  not  only  do  his  possessions  change  hands, 
but  their  very  nature  is  altered ;  since  they  are  parcelled 
into  shares,  which  become  smaller  and  smaller  at  each 
division.  This  is  the  direct  and,  as  it  were,  the  phy- 
sical effect  of  the  law.  It  follows^then,  that  in  countries 
where  equality  of  inheritance  is  established  by  law,  pro- 
perty, and  especially  landed  property,  must  have  a  ten- 
dency to  perpetual  diminution.  The  effects,  however, 
of  such  legislation  would  only  be  perceptible  after  a 
lapse  of  time,  if  the  law  was  abandoned  to  its  own  work- 
ing ;  for  supposing  a  family  to  consist  of  two  children, 
(and  in  a  country  peopled  as  France  is  the  average  num- 
ber is  not  above  three,)  these  children,  sharing  amongst 
them  the  fortune  of  both  parents,  would  not  be  poorer 
than  their  father  or  mother. 

But  the  law  of  equal  division  exercises  its  influence 
not  merely  upon  the  property  itself,  but  it  affects  the 
minds  of  the  heirs,  and  brings  their  passions  into  play. 


42 

These  indirect  consequences  tend  powerfully  to  the  de- 
struction of  large  fortunes,  and  especially  of  large  do- 
mains. 

Among  nations  whose  law  of  descent  is  founded  upon 
the  right  of  primogeniture,  landed  estates  often  pass  from 
generation  to  generation  without  undergoing  division  ; 
the  consequence  of  which  is  that  family  feeling  is  to  a 
certain  degree  incorporated  with  the  estate.  The  family 
represents  the  estate,  the  estate  the  family ;  whose  name 
together  with  its  origin,  its  glory,  its  power,  and  its  vir- 
tues, is  thus  perpetuated  in  an  imperishable  memorial 
of  the  past,  and  a  sure  pledge  of  the  future. 

When  the  equal  partition  of  property  is  established 
by  law,  the  intimate  connexion  is  destroyed  between 
family-feeling  and  the  preservation  of  the  paternal 
estate ;  the  property  ceases  to  represent  the  family ;  for, 
as  it  must  inevitably  be  divided  after  one  or  two  gene- 
rations, it  has  evidently  a  constant  tendency  to  diminish, 
and  must  in  the  end  be  completely  dispersed.  The 
sons  of  the  great  landed  proprietor,  if  they  are  few  in 
number,  or  if  fortune  befriends  them,  may  indeed  en- 
tertain the  hope  of  being  as  wealthy  as  their  father,  but 
not  that  of  possessing  the  same  property  as  he  did ; 
their  riches  must  necessarily  be  composed  of  elements 
different  from  his. 

Now,  from  the  moment  that  you  divest  the  land- 
owner of  that  interest  in  the  preservation  of  his  estate 
which  he  derives  from  association,  from  tradition,  and 
from  family  pride,  you  may  be  certain  that  sooner  or 
later  he  will  dispose  of  it ;  for  there  is  a  strong  pecu- 
niary interest  in  favour  of  selling,  as  floating  capital  pro- 
duces higher  interest  than  real  property,  and  is  more 
readily  available  to  gratify  the  passions  of  the  moment. 
Great  landed  estates  which  have  once  been  divided 
never  come  together  again ;  for  the  small  proprietor 


43 

draws  from  his  land  a  better  revenue  in  proportion, 
than  the  large  owner  does  from  his  ;  and  of  course  he 
sells  it  at  a  higher  rate*.  The  calculations  of  gain, 
therefore,  which  decided  the  rich  man  to  sell  his  domain, 
will  still  more  powerfully  influence  him  against  buying 
small  estates  to  unite  them  into  a  large  one. 

What  is  called  family-pride  is  often  founded  upon  an 
illusion  of  self-love.  A  man  wishes  to  perpetuate  and 
immortalize  himself,  as  it  were,  in  his  great  grand- 
children. Where  the  esprit  defamille  ceases  to  act,  in- 
dividual selfishness  comes  into  play.  When  the  idea  of 
family  becomes  vague,  indeterminate,  and  uncertain,  a 
man  thinks  of  his  present  convenience ;  he  provides  for 
the  establishment  of  the  succeeding  generation,  and  no 
more. 

Either  a  man  gives  up  the  idea  of  perpetuating  his 
family,  or  at  any  rate  he  seeks  to  accomplish  it  by  other 
means  than  that  of  a  landed  estate. 

Thus  not  only  does  the  law  of  partible  inheritance 
render  it  difficult  for  families  to  preserve  their  ancestral 
domains  entire,  but  it  deprives  them  of  the  inclination 
to  attempt  it,  and  compels  them  in  some  measure  to  co- 
operate with  the  law  in  their  own  extinction. 

The  law  of  equal  distribution  proceeds  by  two  me  • 
thods :  by  acting  upon  things,  it  acts  upon  persons ; 
by  influencing  persons,  it  affects  things.  By  these 
means  the  law  succeeds  in  striking  at  the  root  of  landed 
property,  and  dispersing  rapidly  both  families  and  for- 
tunes f. 

*  I  do  not  mean  to  say  that  the  small  proprietor  cultivates  his 
land  better,  but  he  cultivates  it  with  more  ardour  and  care  ;  so  that 
he  makes  up  by  his  labour  for  his  want  of  skill. 

t  Land  being  the  most  stable  kind  of  property,  we  find,  from  time 
to  time,  rich  individuals  who  are  disposed  to  make  great  sacrifices  in 
order  to  obtain  it,  and  who  willingly  forfeit  a  considerable  part  of 
their  income  to  make  sure  of  the  rest.  But  these  are  accidental  cases. 
The  preference  for  landed  property  is  no  longer  found  habitually  in 


44 

Most  certainly  it  is  not  for  us.  Frenchman  of  the  nine- 
teenth century,  who  daily  witness  the  political  and  so- 
cial changes  which  the  law  of  partition  is  bringing  to 
pass,  to  question  its  influence.  It  is  perpetually  con- 
spicuous in  our  country,  overthrowing  the  walls  of  our 
dwellings  and  removing  the  landmarks  of  our  fields. 
But  although  it  has  produced  great  effects  in  France, 
much  still  remains  for  it  to  do.  Our  recollections, 
opinions,  and  habits  present  powerful  obstacles  to  its 
progress. 

.  In  the  United  States  it  has  nearly  completed  its  work 
of  destruction,  and  there  we  can  best  study  its  results. 
The  English  laws  concerning  the  transmission  of  pro- 
perty were  abolished  in  almost  all  the  States  at  the  time 
of  the  Revolution.  The  law  of  entail  was  so  modified 
as  not  to  interrupt  the  free  circulation  of  property*. 
The  first  generation  having  passed  away,  estates  began 
to  be  parcelled  out ;  and  the  change  became  more  and 
more  rapid  with  the  progress  of  time.  At  this  moment, 
after  a  lapse  of  little  more  than  sixty  years,  the  aspect 
of  society  is  totally  altered ;  the  families  of  the  great 
landed  proprietors  are  almost  all  commingled  with  the 
general  mass.  In  the  State  of  New  York,  which  for- 
merly contained  many  of  these,  there  are  but  two  who 
still  keep  their  heads  above  the  stream  ;  and  they  must 
shortly  disappear.  The  sons  of  these  opulent  citizens 
are  become  merchants,  lawyers,  or  physicians.  Most 

any  class  but  among  the  poor.  The  small  landowner,  who  has  less 
information,  less  imagination,  and  fewer  passions  than  the  great  one, 
is  generally  occupied  with  the  desire  of  increasing  his  estate ;  and  it 
often  happens  that  by  inheritance,  by  marriage,  or  by  the  chances  of 
trade,  he  is  gradually  furnished  with  the  means.  Thus,  to  balance 
the  tendency  which  leads  men  to  divide  their  estates,  there  exists 
another,  which  incites  them  to  add  to  them.  This  tendency,  which 
is  sufficient  to  pi-event  estates  from  being  divided  ad  inftniium,  is  not 
strong  enough  to  create  great  territorial  possessions,  certainly  not  to 
keep  them  up  in  the  same  family. 
*  See  Appendix,  G. 


45 

of  them  have  lapsed  into  obscurity.  The  last  trace  of 
hereditary  ranks  and  distinctions  is  destroyed, — the  law 
of  partition  has  reduced  all  to  one  level. 

I  do  not  mean  that  there  is  any  deficiency  of  wealthy 
individuals  in  the  United  States  ;  I  know  of  no  country, 
indeed,  where  the  love  of  money  has  taken  stronger  hold 
on  the  affections  of  men,  and  where  a  profounder  con- 
tempt is  expressed  for  the  theory  of  the  permanent 
equality  of  property.  But  wealth  circulates  with  incon- 
ceivable rapidity,  and  experience  shows  that  it  is  rare  to 
find  two  succeeding  generations  in  the  full  enjoyment 
of  it. 

This  picture,  which  may  perhaps  be  thought  to  be 
overcharged,  still  gives  a  very  imperfect  idea  of  what  is 
taking  place  in  the  new  States  of  the  West  and  South- 
west. At  the  end  of  the  last  century  a  few  bold  adven- 
turers began  to  penetrate  into  the  valleys  of<4he  Missis- 
sippi :  and  the  mass  of  the  population  very  soon  began 
to  move  in  that  direction :  communities  unheard  of  till 
then  were  seen  to  emerge  from  the  wilds  ;  States,  whose 
names  were  not  in  existence  a  few  years  before,  claimed 
their  place  in  the  American  Union ;  and  in  the  Western 
settlements  we  may  behold  democracy  arrived  at  its  ut- 
most extreme.  In  these  states,  founded  offhand  and  as 
it  were  by  chance,  the  inhabitants  are  but  of  yesterday. 
Scarcely  known  to  one  another,  the  nearest  neighbours 
are  ignorant  of  each  other's  history.  In  this  part  of  the 
American  continent,  therefore,  the  population  has  not 
experienced  the  influence  of  great  names  and  great 
wealth,  nor  even  that  of  the  natural  aristocracy  of  know- 
ledge and  virtue.  None  are  there  to  wield  that  respect- 
able power  which  men  willingly  grant  to  the  remem- 
brance of  a  life  spent  in  doing  good  before  their  eyes. 
The  new  States  of  the  West  are  already  inhabited ;  but 
society  has  no  existence  among  them. 


46 

It  is  not  only  the  fortunes  of  men  which  are  equal  in 
America ;  even  their  acquirements  partake  in  some  de- 
gree of  the  same  uniformity.  I  do  not  believe  that  there 
is  a  country  in  the  world  where,  in  proportion  to  the 
population,  there  are  so  few  instructed,  and  at  the  same 
time  so  few  learned  individuals.  Primary  instruction  is 
within  the  reach  of  every  body ;  superior  instruction  is 
scarcely  to  be  obtained  by  any.  This  is  not  surprising ; 
it  is  in  fact  the  necessary  consequence  of  what  we  have 
advanced  above.  Almost  all  the  Americans  are  in  easy 
circumstances,  and  can  therefore  obtain  the  first  ele- 
ments of  human  knowledge. 

In  America  there  are  comparatively  few  who  are  rich 
enough  to  live  without  a  profession.  Every  profession 
requires  an  apprenticeship,  which  limits  the  time  of  in- 
struction to  the  early  years  of  life.  At  fifteen  they  enter 
upon  then*  calling,  and  thus  their  education  ends  at  the 
age  when  ours  begins.  Whatever  is  done  afterwards, 
is  with  a  view  to  some  special  and  lucrative  object ;  a 
science  is  taken  up  as  a  matter  of  business,  and  the  only 
branch  of  it  which  is  attended  to  is  such  as  admits  of  an 
immediate  practical  application. 

In  America  most  of  the  rich  men  were  formerly  poor  ; 
most  of  those  who  now  enjoy  leisure  were  absorbed  in 
business  during  their  youth ;  the  consequence  of  which 
is,  that  when  they  might  have  had  a  taste  for  study 
they  had  no  time  for  it,  and  when  the  time  is  at  their 
disposal  they  have  no  longer  the  inclination. 

There  is  no  class,  then,  in  America  in  which  the  taste 
for  intellectual  pleasures  is  transmitted  with  hereditary 
fortune  and  leisure,  and  by  which  the  labours  of  the  in- 
tellect are  held  in  honour.  Accordingly  there  is  an 
equal  want  of  the  desire  and  the  power  of  application  to 
these  objects. 

A  middling  standard  is  fixed  in  America  for  human 


47 

knowledge.  All  approach  as  near  to  it  as  they  can ; 
some  as  they  rise,  others  as  they  descend.  Of  course, 
an  immense  multitude  of  persons  are  to  be  found  who 
entertain  the  same  number  of  ideas  on  religion,  history, 
science,  political  economy,  legislation,  and  government. 
The  gifts  of  intellect  proceed  directly  from  God,  and 
man  cannot  prevent  their  unequal  distribution.  But  in 
consequence  of  the  state  of  things  which  we  have  here 
represented,  it  happens,  that  although  the  capacities  of 
men  are  widely  different,  as  the  Creator  has  doubtless 
intended  they  should  be,  they  are  submitted  to  the  same 
method  of  treatment. 

In  America  the  aristocratic  element  has  always  been 
feeble  from  its  birth ;  and  if  at  the  present  day  it  is  not 
actually  destroyed,  it  is  at  any  rate  so  completely  disabled 
that  we  can  scarcely  assign  to  it  any  degree  of  influence 
in  the  course  of  affairs. 

The  democratic  principle,  on  the  contrary,  has  gained 
so  much  strength  by  time,  by  events  and  by  legislation, 
as  to  have  become  not  only  predominant  but  all-power- 
ful. There  is  no  family  or  corporate  authority,  and  it  is 
rare  to  find  even  the  influence  of  individual  character 
enjoy  any  durability. 

America,  then,  exhibits  in  her  social  state  a  most  ex- 
traordinary phaenomenon.  Men  are  there  seen  on  a 
greater  equality  in  point  of  fortune  and  intellect,  or  in 
other  words,  more  equal  in  their  strength,  than  in  any 
other  country  of  the  world,  or,  in  any  age  of  which  his- 
tory has  preserved  the  remembrance. 


POLITICAL,  CONSEQUENCES  OF  THE  SOCIAL  CONDITION 
OF  THE  ANGLO-AMERICANS. 

THE  political  consequences  of  such  a  social  condition  as 
this  are  easily  deducible. 


48 

It  is  impossible  to  believe  that  equality  will  not  event- 
ually find  its  way  into  the  political  world  as  it  does 
everywhere  else.  To  conceive  of  men  remaining  for  ever 
unequal  upon  one  single  point,  yet  equal  on  all  others, 
is  impossible ;  they  must  come  in  the  end  to  be  equal 
upon  all. 

Now  I  know  of  only  two  methods  of  establishing 
equality  in  the  political  world ;  every  citizen  must  be 
put  in  possession  of  his  rights,  or  rights  must  be  granted 
to  no  one.  For  nations  which  are  arrived  at  the  sam^ 
stage  of  social  existence  as  the  Anglo-Americans,  it  is 
therefore  very  difficult  to  discover  a  medium  between  the 
sovereignty  of  all  and  the  absolute  power  of  one  man  ; 
and  it  would  be  vain  to  deny  that  the  social  condition 
which  I  have  been  describing  is  equally  liable  to  each  of 
these  consequences. 

There  is,  in  fact,  a  manly  and  lawful  passion  for  equal- 
ity which  excites  men  to  wish  all  to  be  powerful  and 
honoured.  This  passion  tends  to  elevate  the  humble  to 
the  rank  of  the  great ;  but  there  exists  also  in  the  hu- 
man heart  a  depraved  taste  for  equality,  which  impels 
the  weak  to  attempt  to  lower  the  powerful  to  their  own 
level,  and  reduces  men  to  prefer  equality  in  slavery  to 
inequality  with  freedom.  Not  that  those  nations  whose 
social  condition  is  democratic  naturally  despise  liberty ; 
on  the  contrary,  they  have  an  instinctive  love  of  it.  But 
liberty  is  not  the  chief  and  constant  object  of  their  de- 
sires ;  equality  is  their  idol :  they  make  rapid  and  sud- 
den efforts  to  obtain  liberty ;  and  if  they  miss  their  aim, 
resign  themselves  to  then*  disappointment ;  but  nothing 
can  satisfy  them  except  equality,  and  rather  than  lose 
it  they  resolve  to  perish. 

On  the  other  hand,  in  a  state  where  the  citizens  are 
nearly  on  an  equality,  it  becomes  difficult  for  them  to 
preserve  their  independence  against  the  aggressions  of 


49 

power.  No  one  among  them  being  strong  enough  to 
engage  singly  in  the  struggle  with  advantage,  nothing 
but  a  general  combination  can  protect  their  liberty :  and 
such  a  union  is  not  always  to  be  found. 

From  the  same  social  position,  then,  nations  may  de- 
rive one  or  the  other  of  two  great  political  results ;  these 
results  are  extremely  diiferent  from  each  other,  but  they 
may  both  proceed  from  the  same  cause. 

The  Anglo-Americans  are  the  first  who,  having  been 
exposed  to  this  formidable  alternative,  have  been  happy 
enough  to  escape  the  dominion  of  absolute  power.  They 
have  been  allowed  by  their  circumstances,  their  origin, 
their  inteUigence,  and  especially  by  their  moral  feeling, 
to  establish  and  maintain  the  sovereignty  of  the  people. 


CHAPTER  IV. 

THE  PRINCIPLE  OF  THE  SOVEREIGNTY  OF  THE  PEOPLE 
IN  AMERICA. 

It  predominates  over  the  whole  of  society  in  America. — Application 
made  of  this  principle  by  the  Americans  even  before  their  Revolu- 
tion.— Development  given  to  it  by  that  Revolution. — Gradual  and 
irresistible  extension  of  the  elective  qualification. 

WHENEVER  the  political  laws  of  the  United  States 
are  to  be  discussed,  it  is  with  the  doctrine  of  the  sove- 
reignty of  the  people  that  we  must  begin. 

The  principle  of  the  sovereignty  of  the  people,  which 
is  to  be  found,  more  or  less,  at  the  bottom  of  almost 
all  human  institutions,  generally  remains  concealed  from 
view.  It  is  obeyed  without  being  recognised,  or  if  for 
a  moment  it  be  brought  to  light,  it  is  hastily  cast  back 
into  the  gloom  of  the  sanctuary. 

f  The  will  of  the  nation '  is  one  of  those  expressions 
which  have  been  most  profusely  abused  by  the  wily  and 
the  despotic  of  every  age.  To  the  eyes  of  some  it  has 

VOL.  I.  D 


50 

been  represented  by  the  venal  suffrages  of  a  few  of  the 
satellites  of  power ;  to  others,  by  the  votes  of  a  timid  or 
an  interested  minority  ;  and  some  have  even  discovered 
it  in  the  silence  of  a  people,  on  the  supposition  that  the 
fact  of  submission  established  the  right  of  command. 

In  America,  the  principle  of  the  sovereignty  of  the 
people  is  not  either  barren  or  concealed,  as  it  is  with 
some  other  nations ;  it  is  recognised  by  the  customs 
and  proclaimed  by  the  laws ;  it  spreads  freely,  and  ar- 
rives without  impediment  at  its  most  remote  conse- 
quences. If  there  be  a  country  in  the  world  where  the 
doctrine  of  the  sovereignty  of  the  people  can  be  fairly 
appreciated,  where  it  can  be  studied  in  its  application 
to  the  affairs  of  society,  and  where  its  dangers  and  its 
advantages  may  be  foreseen,  that  country  is  assuredly 
America. 

I  have  already  observed  that,  from  their  origin,  the 
sovereignty  of  the  people  was  the  fundamental  principle 
of  the  greater  number  of  British  colonies  in  America. 
It  was  far,  however,  from  then  exercising  as  much  in- 
fluence on  the  government  of  society  as  it  now  does. 
Two  obstacles,  the  one  external,  the  other  internal, 
checked  its  invasive  progress. 

It  could  not  ostensibly  disclose  itself  in  the  laws  of 
colonies  which  were  still  constrained  to  obey  the  mother- 
country  :  it  was  therefore  obliged  to  spread  secretly, 
and  to  gain  ground  in  the  provincial  assemblies,  and 
especially  in  the  townships. 

American  society  was  not  yet  prepared  to  adopt  it 
with  all  its  consequences.  The  intelligence  of  New- 
England,  and  the  wealth  of  the  country  to  the  south  of 
the  Hudson,  (as  I  have  shown  in  the  preceding  chap- 
ter,) long  exercised  a  sort  of  aristocratic  influence,  which 
tended  to  limit  the  exercise  of  social  authority  within 
the  hands  of  a  few.  The  public  functionaries  were  not 


51 

universally  elected,  and  the  citizens  were  not  all  of  them 
electors.  The  electoral  franchise  was  everywhere  placed 
within  certain  limits,  and  made  dependent  on  a  certain 
qualification,  which  was  exceedingly  low  in  the  North, 
and  more  considerable  in  the  South. 

The  American  revolution  broke  out,  and  the  doctrine 
of  the  sovereignty  of  the  people,  which  had  been  nur- 
tured in  the  townships,  took  possession  of  the  State : 
every  class  was  enlisted  in  its  cause;  battles  were 
fought,  and  victories  obtained  for  it;  until  it  became 
the  law  of  laws. 

A  scarcely  less  rapid  change  was  effected  in  the  inte- 
rior of  society,  where  the  law7  of  descent  completed  the 
abolition  of  local  influences, 

At  the  very  time  when  this  consequence  of  the  laws 
and  of  the  revolution  became  apparent  to  every  eye, 
victory  was  irrevocably  pronounced  in  favour  of  the  de- 
mocratic cause.  All  power  was,  in  fact,  in  its  hands, 
and  resistance  was  no  longer  possible.  The  higher 
orders  submitted  without  a  murmur  and  without  a 
struggle  to  an  evil  which  was  thenceforth  inevitable. 
The  ordinary  fate  of  falling  powers  awaited  them ;  each 
of  their  several  members  followed  his  own  interest ;  and 
as  it  wras  impossible  to  wring  the  power  from  the  hands 
of  a  people  which  they  did  not  detest  sufficiently  to 
brave,  their  only  aim  was  to  secure  its  good-will  at  any 
price.  The  most  democratic  laws  were  consequently 
voted  by  the  very  men  whose  interests  they  impaired  : 
and  thus,  although  the  higher  classes  did  not  excite  the 
passions  of  the  people  against  their  order,  they  accele- 
rated the  triumph  of  the  new  state  of  things ;  so  that, 
by  a  singular  change,  the  democratic  impulse  was  found 
to  be  most  irresistible  in  the  very  States  where  the 
aristocracy  had  the  firmest  hold. 

The  State  of  Maryland,  which  had  been  founded  by 
D  2 


52 

men  of  rank,  was  the  first  to  proclaim  universal  suf- 
frage*, and  to  introduce  the  most  democratic  forms  into 
the  conduct  of  its  government. 

When  a  nation  modifies  the  elective  qualification,  it 
may  easily  be  foreseen  that  sooner  or  later  that  qualifi- 
cation will  be  entirely  abolished.  There  is  no  more  in- 
variable rule  in  the  history  of  society :  the  further  elec- 
toral rights  are  extended,  the  more  is  felt  the  need  of 
,  extending  them ;  for  after  each  concession  the  strength 
of  the  democracy  increases,  and  its  demands  increase 
with  its  strength.  The  ambition  of  those  who  are  be- 
low the  appointed  rate  is  irritated  in  exact  proportion 
to  the  great  number  of  those  who  are  above  it.  The 
exception  at  last  becomes  the  rule,  concession  follows 
concession,  and  no  stop  can  be  made  short  of  universal 
suffrage. 

At  the  present  day  the  principle  of  the  sovereignty  of 
the  people  has  acquired,  in  the  United  States,  all  the 
practical  development  which  the  imagination  can  con- 
ceive. It  is  unencumbered  by  those  fictions  which  have 
been  thrown  over  it  in  other  countries,  and  it  appears 
in  every  possible  form  according  to  the  exigency  of  the 
occasion.  Sometimes  the  laws  are  made  by  the  people 
in  a  body,  as  at  Athens ;  and  sometimes  its  represen- 
tatives, chosen  by  universal  suffrage,  transact  business 
in  its  name,  and  almost  under  its  immediate  control. 

In  some  countries  a  power  exists  which,  though  it  is 
in  a  degree  foreign  to  the  social  body,  directs  it,  and 
forces  it  to  pursue  a  certain  track.  In  others  the  ruling 
force  is  divided,  being  partly  \vithin  and  partly  without 
the  ranks  of  the  people.  But  nothing  of  the  kind  is  to 
be  seen  in  the  United  States ;  there  society  governs  it- 
self for  itself.  All  power  centres  in  its  bosom ;  and 

*  See  the  amendments  made  to  the  Constitution  of  Maryland  in 
1801  and  1809. 


53 

scarcely  an  individual  is  to  be  met  with  who  would  ven- 
ture to  conceive,  or,  still  less,  to  express,  the  idea  of 
seeking  it  elsewhere.  The  nation  participates  in  the 
making  of  its  laws  by  the  choice  of  its  legislators,  and 
in  the  execution  of  them  by  the  choice  of  the  agents  of 
the  executive  government ;  it  may  almost  be  said  to 
govern  itself,  so  feeble  and  so  restricted  is  the  share  left 
to  the  administration,  so  little  do  the  authorities  forget 
their  popular  origin  and  the  power  from  which  they 
emanate  *. 


CHAPTER  V. 

NECESSITY    OF    EXAMINING    THE    CONDITION    OF    THE 
STATES  BEFORE  THAT  OF  THE  UNION  AT  LARGE. 

IT  is  proposed  to  examine  in  the  following  chapter, 
what  is  the  form  of  government  established  in  America 
on  the  principle  of  the  sovereignty  of  the  people ;  Avhat 
are  its  resources,  its  hindrances,  its  advantages,  and  its 
dangers.  The  first  difficulty  which  presents  itself  arises 
from  the  complex  nature  of  the  Constitution  of  the 
United  States,  which  consists  of  two  distinct  social 
structures,  connected,  and,  as  it  were,  encased  one 
w'ithin  the  other;  two  governments,  completely  sepa- 
rate and  almost  independent,  the  one  fulfilling  the  or- 
dinary duties,  and  responding  to  the  daily  and  indefi- 
nite calls  of  a  community,  the  other  circumscribed 
within  certain  limits,  and  only  exercising  an  exceptional 
authority  over  the  general  interests  of  the  country.  In 
short,  there  are  twenty-four  small  sovereign  nations, 
whose  agglomeration  constitutes  the  body  of  the  Union. 
To  examine  the  Union  before  we  have  studied  the  States, 
would  be  to  adopt  a  method  filled  with  obstacles.  The 

*  See  Appendix,  H. 


54 

form  of  the  Federal  Government  of  the  United  States 
was  the  last  which  was  adopted ;  and  it  is  in  fact  no- 
thing more  than  a  modification  or  a  summary  of  those 
republican  principles  which  were  current  in  the  whole 
community  before  it  existed,  and  independently  of  its 
existence.  Moreover,  the  Federal  Government  is,  as  I 
have  just  observed,  the  exception ;  the  Government  of 
the  States  is  the  rule.  The  author  who  should  attempt 
to  exhibit  the  picture  as  a  whole,  before  he  had  ex- 
plained its  details,  would  necessarily  fall  into  obscurity 
and  repetition. 

The  great  political  principles  which  govern  American 
society  at  this  day  undoubtedly  took  their  origin  and 
their  growth  in  the  State.  It  is  therefore  necessary  to 
become  acquainted  with  the  State  in  order  to  possess  a 
clue  to  the  remainder.  The  States  which  at  present 
compose  the  American  Union  all  present  the  same 
features  as  far  as  regards  the  external  aspect  of  their  in- 
stitutions. Their  political  or  administrative  existence 
is  centred  in  three  foci  of  action,  which  may  not  inaptly 
be  compared  to  the  different  nervous  centres  which  con- 
vey motion  to  the  human  body.  The  township  is  the 
lowest  in  order,  then  the  county,  and  lastly  the  State ; 
and  I  propose  to  devote  the  following  chapter  to  the  ex- 
amination of  these  three  divisions. 


THE    AMERICAN    SYSTEM    OF    TOWNSHIPS    AND    MUNI- 
CIPAL BODIES*. 

AYhy  the  Author  begins  the  examination  of  the  political  institutions 
with  the  township. — Its  existence  in  all  nations. — Difficulty  of 
establishing  and  preserving  municipal  independence. — Its  impor- 
tance.— Why  the  author  has  selected  the  township  system  of  New 
England  as  the  main  object  of  his  inquiry. 

IT  is  not  undesignedly  that  I  begin  this  subject  with  the 
Township.      The  village   or  township  is  the  only  as- 

*  [It  is  by  this  periphrasis  that  I   attempt  to  render  the  French 


55 

sociation  which  is  so  perfectly  natural,  that  wherever  a 
number  of  men  are  collected,  it  seems  to  constitute  itself. 
The  town,  or  tithing,  as  the  smallest  division  of  a 
community,  must  necessarily  exist  in  all  nations,  what- 
ever their  laws  and  customs  may  be :  if  man  makes 
monarchies,  and  establishes  republics,  the  first  associa- 
tion of  mankind  seems  constituted  by  the  hand  of  God. 
But  although  the  existence  of  the  township  is  coeval 
with  that  of  man,  its  liberties  are  not  the  less  rarely  re- 
spected and  easily  destroyed.  A  nation  is  always  able 
to  establish  great  political  assemblies,  because  it  habi- 
tually contains  a  certain  number  of  individuals  fitted  by 
their  talents,  if  not  by  their  habits,  for  the  direction  of 
affairs.  The  township  is,  on  the  contrary,  composed  of 
coarser  materials,  which  are  less  easily  fashioned  by  the 
legislator.  The  difficulties  which  attend  the  consolida- 
tion of  its  independence  rather  augment  than  diminish 
with  the  increasing  enlightenment  of  the  people.  A 
highly  civilized  community  spurns  the  attempts  of  a 
local  independence,  is  disgusted  at  its  numerous  blun- 
ders, and  is  apt  to  despair  of  success  before  the  experi- 
ment is  completed.  Again,  no  immunities  are  so  ill 

expressions  '  Commune  '  and  '  Systeme  Communal '.  I  am  not  aware 
that  any  English  word  precisely  corresponds  to  the  general  term  of 
the  original.  In  France  every  association  of  human  dwellings  forms 
a  commune,  and  every  commune  is  governed  hy  a  Maire  and  a  ConseiL 
municipal.  In  other  words,  the  mancipium,  or  municipal  privilege, 
which  belongs  in  England  to  chartered  corporations  alone,  is  alike 
extended  to  every  commune  into-which  the  cantons  and  departments 
of  France  were  divided  at  the  Revolution.  Thence  the  different  ap- 
plication of  the  expression,  which  is  general  in  one  country  and  re- 
stricted in  the  other.  In  America,  the  counties  of  the  Northern 
States  are  divided  into  townships,  those  of  the  Southern  into  pa- 
rishes ;  besides  which,  municipal  bodies,  bearing  the  name  of  corpo- 
rations, exist  in  the  cities.  I  shall  apply  these  several  expressions 
to  render  the  term  commune.  The  word  '  parish  ',  now  commonly 
used  in  England,  belongs  exclusively  to  the  ecclesiastical  division ; 
it  denotes  the  limits  over  which  a  parson 's  (persona  ecclesice  or  per- 
haps parochianus)  rights  extend. — Translator's  Note.'} 


56 

protected  from  the  encroachments  of  the  supreme  power 
as  those  of  municipal  bodies  in  general :  they  are  un- 
able to  struggle,  single-handed,  against  a  strong  or  an 
enterprising  government,  and  they  cannot  defend  their 
cause  with  success  unless  it  be  identified  with  the  cus- 
toms of  the  nation  and  supported  by  public  opinion. 
Thus  until  the  independence  of  townships  is  amalgama- 
ted with  the  manners  of  a  people,  it  is  easily  destroyed ; 
and  it  is  only  after  a  long  existence  in  the  laws  that  it 
can  be  thus  amalgamated.  Municipal  freedom  eludes 
the  exertions  of  man  ;  it  is  rarely  created ;  but  it  is,  as 
it  were,  secretly  and  spontaneously  engendered  in  the 
midst  of  a  semi-barbarous  state  of  society.  The  con- 
stant action  of  the  laws  and  the  national  habits,  peculiar 
circumstances,  and,  above  all,  time  may  consolidate  it  j 
but  there  is  certainly  no  nation  on  the  continent  of 
Europe  which  has  experienced  its  advantages.  Never- 
theless local  assemblies  of  citizens  constitute  the  strength 
of  free  nations.  .  Municipal  institutions  are  to  liberty 
what  primary  schools  are  to  science ;  they  bring  it 
Avithin  the  people's  reach,  they  teach  men  how  to  use 
and  how  to  enjoy  it.  A  nation  may  establish  a  system 
of  free  government,  but  without  the  spirit  of  municipal 
institutions  it  cannot  have  the  spirit  of  liberty.  The 
transient  passions,  and  the  interests  of  an  hour,  or  the 
chance  of  circumstances,  may  have  created  the  external 
forms  of  independence ;  but  the  despotic  tendency 
which  has  been  repelled  will,  sooner  or  later,  inevitably 
reappear  on  the  surface. 

In  order  to  explain  to  the  reader  the  general  princi- 
ples on  which  the  political  organization  of  the  counties 
and  townships  of  the  United  States  rests,  I  have  thought 
it  expedient  to  choose  one  of  the  States  of  New  England  as 
an  example,  to  examine  the  mechanism  of  its  constitution, 
and  then  to  cast  a  general  glance  over  the  country. 


57 

The  township  and  the  county  are  not  organized  in  the 
same  manner  in  every  part  of  the  Union  ;  it  is  however 
easy  to  perceive  that  the  same  principles  have  guided 
the  formation  of  both  of  them  throughout  the  Union. 
I  am  inclined  to  believe  that  these  principles  have  been 
carried  further  in  New  England  than  elsewhere,  and 
consequently  that  they  offer  greater  facilities  to  the  ob- 
servations of  a  stranger. 

The  institutions  of  New  England  form  a  complete  and 
regular  whole  :  they  have  received  the  sanction  of  time, 
they  have  the  support  of  the  laws,  and  the  still  stronger 
support  of  the  manners  of  the  community,  over  which 
they  exercise  the  most  prodigious  influence ;  they  con- 
sequently deserve  our  attention  on  every  account. 


LIMITS  OF  THE  TOWNSHIP. 

THE  Township  of  New  England  is  a  division  which 
stands  between  the  commune  and  the  canton  of  France, 
and  which  corresponds  in  general  to  the  English  tithing, 
or  town.  Its  average  population  is  from  two  to  three 
thousand*;  so  that,  on  the  one  hand,  the  interests  of  its 
inhabitants  are  not  likely  to  conflict,  and,  on  the  other, 
men  capable  of  conducting  its  affairs  are  always  to  be 
found  among  its  citizens. 


AUTHORITIES  OF  THE  TOWNSHIP  IN  NEW  ENGLAND. 

The  people  the  source  of  all  power  here  as  elsewhere. — Manages  its 
own  affairs. — No  corporation. — The  greater  part  of  the  authority 
vested  in  the  hands  of  the  Selectmen. — How  the  Selectmen  act. 
— Town-meeting. — Enumeration  of  the  public  officers  of  the 
township. — Obligatory  and  remunerated  functions. 

IN  the  township,  as  well  as  everywhere  else,  the  people 
is  the  only  source  of  power ;  but  in  no  stage  of  govern- 

*  In  1830  there  were  305  townships  in  the  State  of  Massachusetts, 
and  010,014  inhabitants;  which  gives  an  average  of  about  2000  in- 
haoitants  to  each  township. 

D  5 


58 

merit  does  the  body  of  citizens  exercise  a  more  imme- 
diate influence.  In  America,  the  people  is  a  master 
whose  exigencies  demand  obedience  to  the  utmost  limits 
of  possibility. 

In  New  England  the  majority  acts  by  representatives 
in  the  conduct  of  the  public  business  of  the  State  ;  but 
!f  such  an  arrangement  be  necessary  in  general  affairs, 
in  the  townships,  where  the  legislative  and  administra- 
tive action  of  the  government  is  in  more  immediate  con- 
tact with  the  subject,  the  system  of  representation  is  not 
adopted.  There  is  no  corporation ;  but  the  body  of 
electors,  after  having  designated  its  magistrates,  directs 
them  in  everything  that  exceeds  the  simple  and  ordinary 
executive  business  of  the  State*. 

This  state  of  things  is  so  contrary  to  our  ideas,  and 
so  different  from  our  customs,  that  it  is  necessary  for 
me  to  adduce  some  examples  to  explain  it  thoroughly. 

The  public  duties  in  the  township  are  extremely  nu- 
merous, and  minutely  divided,  as  we  shall  see  further 
on ;  but  the  larger  proportion  of  administrative  power  is 
vested  in  the  hands  of  a  small  number  of  individuals, 
called  "the  Selectmen t." 

The  general  laws  of  the  State  impose  a  certain  num- 

*  The  same  rules  are  not  applicable  to  the  great  towns,  which  ge- 
nerally have  a  mayor,  and  a  corporation  divided  into  two  bodies : 
this,  however,  is  an  exception  which  requires  the  sanction  of  a  law. — - 
See  the  Act  of  the  22nd  February  1822,  for  appointing  the  author- 
ities of  the  City  of  Boston.  It  frequently  happens  that  small  towns 
as  well  as  cities  are  subject  to  a  peculiar  administration.  In  1332, 
104  townships  in  the  State  of  New  York  were  governed  in  this  man- 
ner.—  Williams 's  Register, 

f  Three  selectmen  are  appointed  in  the  small  townships,  and  nine 
in  the  large  ones. — See  'The  Town  Officer,'  p.  186.  See  also  the 
principal  laws  of  the  State  of  Massachusetts  relative  to  the  select- 
men : 

Act  of  the  20th  February,  1786,  vol.  i.  p.  219;  24th  February, 
1796,  vol.  i.  p.  488  ;  7th  March,  1801,  vol.  ii.  p.  45;  16th  June, 
1795,  vol.  i.  p.  475;  12th  March,  1808,  vol.  ii.  p.  186;  28th  Fe- 
bruary, 1787,  vol.  i.  p.  302  ;  22nd  June,  1797,  vol.  i.  p.  539. 


59    • 

her  of  obligations  on  the  selectmen,  which  they  may  ful- 
lil  without  the  authorization  of  the  body  they  govern, 
but  which  they  can  only  neglect  on  their  own  responsi- 
bility. The  law  of  the  State  obliges  them,  for  instance, 
to  draw  up  the  list  of  electors  in  their  townships  ;  and 
if  they  omit  this  part  of  their  functions,  they  are  guilty 
of  a  misdemeanor.  In  all  the  affairs,  however,  which 
are  determined  by  the  town-meeting,  the  selectmen  are; 
the  organs  of  the  popular  mandate,  as  in  France  the 
Maire  executes  the  decree  of  the  municipal  council. 
They  usually  act  upon  their  own  responsibility,  and 
merely  put  in  practice  principles  which  have  been  previ- 
ously recognised  by  the  majority.  But  if  any  change  is 
to  be  introduced  in  the  existing  state  of  things,  or  if 
they  wish  to  undertake  any  newr  enterprise,  they  are 
obliged  to  refer  to  the  source  of  their  power.  If,  for  in- 
stance, a  school  is  to  be  established,  the  selectmen  con- 
voke the  w7hole  body  of  electors  on  a  certain  day  at  an 
appointed  place  ;  they  explain  the  urgency  of  the  case  ; 
they  give  their  opinion  on  the  means  of  satisfying  it,  on 
the  probable  expense,  and  the  site  wrhich  seems  to  be 
most  favourable.  The  meeting  is  consulted  on  these 
several  points  ;  it  adopts  the  principle,  marks  out  the 
site,  votes  the  rate,  and  confides  the  execution  of  its 
resolution  to  the  selectmen. 

The  selectmen  have  alone  the  right  of  calling  a  town- 
meeting  ;  but  they  may  be  requested  to  do  so  :  if  ten 
citizens  are  desirous  of  submitting  a  new  project  to  the 
assent  of  the  township,  they  may  demand  a  general  con- 
vocation of  the  inhabitants  ;  the  selectmen  are  obliged  to 
comply,  but  they  have  only  the  right  of  presiding  at  the 
meeting*. 

The  selectmen  are  elected  every  year,  in  the  month  of 

*  See  laws  of  Massachusetts,  vol.  i.  p.  150,  Act  of  the  25th 
March,  178G. 


60 

April  or  of  May.  The  town-meeting  chooses  at  the  same 
time  a  number  of  other  municipal  magistrates,  who  are 
entrusted  with  important  administrative  functions.  The 
assessors  rate  the  township;  the  collectors  receive  the  rate. 
A  constable  is  appointed  to  keep  the  peace,  to  watch  the 
streets,  and  to  forward  the  execution  of  the  laws ;  the 
town-clerk  records  all  the  town  votes,  orders,  grants, 
births,  deaths,  and  marriages  ;  the  treasurer  keeps  the 
funds  ;  the  overseer  of  the  poor  performs  the  difficult  task 
of  superintending  the  action  of  the  poor-laws;  committee- 
men  are  appointed  to  attend  to  the  schools  and  to  pub- 
lic instruction ;  and  the  road-surveyors,  Avho  take  care 
of  the  greater  and  lesser  thoroughfares  of  the  township, 
complete  the  list  of  the  principal  functionaries.  They 
are,  however,  still  further  subdivided ;  and  amongst  the 
municipal  officers  are  to  be  found  parish  commissioners, 
who  audit  the  expenses  of  public  worship ;  different 
classes  of  inspectors,  some  of  whom  are  to  direct  the 
citizens  in  case  of  fire ;  tithing-men,  listers,  haywards, 
chimney-viewers,  fence-viewers  to  maintain  the  bounds 
of  property,  timber-measurers,  and  sealers  of  weights 
and  measures*. 

There  are  nineteen  principal  offices  in  a  township. 
Every  inhabitant  is  constrained,  on  pain  of  being  fined, 
to  undertake  these  different  functions  ;  which,  however, 
are  almost  all  paid,  in  order  that  the  poorer  citizens  may 
be  able  to  give  up  their  time  without  loss.  In  general 
the  American  system  is  not  to  grant  a  fixed  salary  to  its 
functionaries.  Every  service  has  its  price,  and  they  are 
remunerated  in  proportion  to  what  they  have  done. 

*  All  these  magistrates  actually  exist ;  their  different  functions 
are  all  detailed  in  a  book  called  '  The  Town-Officer,'  by  Isaac  Good- 
win, Worcester,  1827  ;  and  in  the  Collection  of  the  General  Laws  of 
Massachusetts,  3  vols.,  Boston,  1823. 


61 


EXISTENCE  OF  THE  TOWNSHIP. 

Every  one  the  best  judge  of  his  own  interest. — Corollary  of  the  prin- 
ciple of  the  sovereignty  of  the  people. — Application  of  these  doc- 
trines in  the  townships  of  America. — The  township  of  New  En- 
gland is  sovereign  in  all  that  concerns  itself  alone  :  subject  to  the 
State  in  all  other  matters. — Bond  of  the  township  and  the  State. — 
In  France  the  Government  lends  its  agents  to  the  Commune. — In 
America  the  reverse  occurs. 

I  HAVE  already  observed,  that  the  principle  of  the  so- 
vereignty of  people  governs  the  whole  political  system 
of  the  Anglo-Americans.  Every  page  of  this  book  will 
afford  new  instances  of  the  same  doctrine.  In  the  na- 
tions by  which  the  sovereignty  of  the  people  is  recog- 
nised, every  individual  possesses  an  equal  share  of 
power,  and  participates  alike  in  the  government  of  the 
State.  Every  individual  is  therefore  supposed  to  be  as 
well-informed,  as  virtuous,  and  as  strong  as  any  of  his 
fellow-citizens.  He  obeys  the  government,  not  because 
he  is  inferior  to  the  authorities  which  conduct  it,  or  that 
he  is  less  capable  than  his  neighbour  of  governing  him- 
self, but  because  he  acknowledges  the  utility  of  an  as- 
sociation with  his  fellow-men,  and  because  he  knows 
that  no  such  association  can  exist  without  a  regulating 
force.  If  he  be  a  subject  in  all  that  concerns  the  mu- 
tual relations  of  citizens,  he  is  free  and  responsible  to 
God  alone  for  all  that  concerns  himself.  Hence  arises  the 
maxim  that  every  one  is  the  best  and  the  sole  judge  of 
his  own  private  interest,  and  that  society  has  no  right 
to  control  a  man's  actions,  unless  they  are  prejudicial  to 
the  common  weal,  or  unless  the  common  weal  demands 
his  cooperation.  This  doctrine  is  universally  admitted 
in  the  United  States.  I  shall  hereafter  examine  the  ge- 
neral influence  which  it  exercises  on  the  ordinary  actions 
of  life  :  I  am  now  speaking  of  the  nature  of  municipal 
bodies. 


62 

The  township,  taken  as  a  whole,  and  in  relation  to 
the  government  of  the  country,  may  be  looked  upon  as 
an  individual  to  whom  the  theory  I  have  just  alluded  to 
is  applied.  Municipal  independence  is  therefore  a  na- 
tural consequence  of  the  principle  of  the  sovereignty  of 
the  people  in  the  United  States :  all  the  American  re- 
publics recognise  it  more  or  less  ;  but  circumstances 
have  peculiarly  favoured  its  growth  in  New  England. 

In  this  part  of  the  Union  the  impulsion  of  political 
activity  was  given  in  the  townships ;  and  it  may  almost 
be  said  that  each  of  them  originally  formed  an  independ- 
ent nation.  When  the  kings  of  England  asserted  their 
supremacy,  they  were  contented  to  assume  the  central 
power  of  the  State.  The  townships  of  New  England 
remained  as  they  were  before ;  and  although  they  are 
now  subject  to  the  State,  they  were  at  first  scarcely  de- 
pendent upon  it.  It  is  important  to  remember  that 
they  have  not  been  invested  with  privileges,  but  that 
they  seem,  on  the  contrary,  to  have  surrendered  a  por- 
tion of  their  independence  to  the  State.  The  townships 
are  only  subordinate  to  the  State  in  those  interests  which 
I  shall  term  social,  as  they  are  common  to  all  the  citi- 
zens. They  are  independent  in  all  that  concerns  them- 
selves ;  and  amongst  the  inhabitants  of  New  England  I 
believe  that  not  a  man  is  to  be  found  who  would  ac- 
knowledge that  the  State  has  any  right  to  interfere  in 
their  local  interests.  The  towns  of  New  England  buy 
and  sell,  prosecute  or  are  indicted,  augment  or  diminish 
their  rates,  without  the  slightest  opposition  on  the  part 
of  the  administrative  authority  of  the  State. 

They  are  bound,  however,  to  comply  with  the  de- 
mands of  the  community.  If  the  State  is  in  need  of 
money,  a  town  can  neither  give  nor  withhold  the  supplies. 
If  the  State  projects  a  road,  the  township  cannot  refuse 
to  let  it  cross  its  territory  ;  if  a  police  regulation  is  made 


63 

by  the  State,  it  must  be  enforced  by  the  town.  A  uni- 
form system  of  instruction  is  organized  all  over  the 
country,  and  every  town  is  bound  to  establish  the 
schools  which  the  law  ordains.  In  speaking  of  the  ad- 
ministration of  the  United  States,  I  shall  have  occasion 
to  point  out  the  means  by  which  the  townships  are 
compelled  to  obey  in  these  different  cases :  I  here 
merely  show  the  existence  of  the  obligation.  Strict  as 
this  obligation  is,  the  government  of  the  State  imposes 
it  in  principle  only,  and  in  its  performance  the  town- 
ship resumes  all  its  independent  rights.  Thus,  taxes  are 
voted  by  the  State,  but  they  are  assessed  and  collected 
by  the  township ;  the  existence  of  a  school  is  obligatory, 
but  the  township  builds,  pays,  and  superintends  it.  In 
France  the  State-collector  receives  the  local  imposts  ;  in 
America  the  town-collector  receives  the  taxes  of  the 
State.  Thus  the  French  Government  lends  its  agents 
to  the  commune ;  in  America,  the  township  is  the  agent 
of  the  Government.  This  fact  alone  shows  the  extent 
of  the  differences  which  exist  between  the  two  nations. 


PUBLIC    SPIRIT    OF    THE    TOWNSHIPS   OF  NEW7 
ENGLAND. 

How  the  township  of  New  England  wins  the  affections  of  its  inha- 
bitants*— Difficulty  of  creating  local  public  spirit  in  Europe. — The 
rights  and  duties  of  the  American  township  favourable  to  it. — 
Characteristics  of  home  in  the  United  States. — Manifestations  of 
public  spirit  in  New  England. —  Its  happy  effects. 

IN  America,  not  only  do  municipal  bodies  exist,  but 
they  are  kept  alive  and  supported  by  public  spirit.  The 
township  of  New  England  possesses  two  advantages 
which  infallibly  secure  the  attentive  interest  of  mankind, 
namely,  independence  and  authority.  Its  sphere  is  in- 
deed small  and  limited,  but  within  that  sphere  its  ac- 


64 

tion  is  unrestrained ;  and  its  independence  would  give 
to  it  a  real  importance,  even  if  its  extent  and  population 
did  not  ensure  it. 

It  is  to  be  remembered  that  the  affections  of  men  are 
generally  turned  only  where  there  is  strength.  Patriot- 
ism is  not  durable  in  a  conquered  nation.  The  New 
Englander  is  attached  to  his  township,  not  only  because 
he  was  born  in  it,  but  because  it  constitutes  a  strong  and 
free  social  body  of  which  he  is  a  member,  and  whose  go- 
vernment claims  and  deserves  the  exercise  of  his  sagacity. 
In  Europe  the  absence  of  local  public  spirit  is  a  frequent 
subject  of  regret  to  those  who  are  in  power ;  every  one 
agrees  that  there  is  no  surer  guarantee  of  order  and  tran- 
quillity, and  yet  nothing  is  more  difficult  to  create.  If 
the  municipal  bodies  were  made  powerful  and  independ- 
ent, the  authorities  of  the  nation  might  be  disunited, 
and  the  peace  of  the  country  endangered.  Yet,  without 
power  and  independence,  a  town  may  contain  good  sub- 
jects, but  it  can  have  no  active  citizens.  Another  im- 
portant fact  is  that  the  township  of  New  England  is  so 
constituted  as  to  excite  the  warmest  of  human  affections, 
without  arousing  the  ambitious  passions  of  the  heart  of 
man.  The  officers  of  the  county  are  not  elected,  and 
their  authority  is  very  limited.  Even  the  State  is  only 
a  second-rate  community,  whose  tranquil  and  obscure 
administration  offers  no  inducement  sufficient  to  draw 
men  away  from  the  circle  of  their  interests  into  the  tur- 
moil of  public  affairs.  The  federal  government  confers 
power  and  honour  on  the  men  who  conduct  it ;  but  these 
individuals  can  never  be  very  numerous.  The  high  sta- 
tion of  the  Presidency  can  only  be  reached  at  an  ad- 
vanced period  of  life  ;  and  the  other  federal  functionaries 
are  generally  men  who  have  been  favoured  by  fortune, 
or  distinguished  in  some  other  career.  Such  cannot  be 
the  permanent  aim  of  the  ambitious.  But  the  township 


65 

serves  as  a  centre  for  the  desire  of  public  esteem,  the 
want  of  exciting  interests,  and  the  taste  for  authority 
and  popularity,  in  the  midst  of  the  ordinary  relations  of 
life ;  and  the  passions  which  commonly  embroil  society, 
change  their  character  when  they  find  a  vent  so  near  the 
domestic  hearth  and  the  family  circle. 

In  the  American  States  power  has  been  disseminated 
with  admirable  skill,  for  the  purpose  of  interesting  the 
greatest  possible  number  of  persons  in  the  common  weal. 
Independently  of  the  electors  who  are  from  time  to  time 
called  into  action,  the  body  politic  is  divided  into  innu- 
merable functionaries  and  officers,  who  all,  in  their  seve- 
ral spheres,  represent  the  same  powerful  corporation  in 
whose  name  they  act.  The  local  administration  thus 
affords  an  unfailing  source  of  profit  and  interest  to  a  vast 
number  of  individuals. 

The  American  system,  which  divides  the  local  autho- 
rity among  so  many  citizens,  does  not  scruple  to  multi- 
ply the  functions  of  the  town  officers.  For  in  the 
United  States  it  is  believed,  and  writh  truth,  that  patri- 
otism is  a  kind  of  devotion  \vhich  is  strengthened  by  ri- 
tual observance.  In  this  manner  the  activity  of  the 
township  is  continually  perceptible ;  it  is  daily  mani- 
fested in  the  fulfilment  of  a  duty,  or  the  exercise  of  a 
right ;  and  a  constant  though  gentle  motion  is  thus  kept 
up  in  society,  which  animates  without  disturbing  it. 

The  American  attaches  himself  to  his  home,  as  the 
mountaineer  clings  to  his  hills,  because  the  characteristic 
features  of  his  countiy  are  there  more  distinctly  marked 
than  elsewhere.  The  existence  of  the  townships  of  New 
England  is  in  general  a  happy  one.  Their  government 
is  suited  to  their  tastes,  and  chosen  by  themselves.  In 
the  midst  of  the  profound  peace  and  general  comfort 
which  reign  in  America,  the  commotions  of  municipal 
discord  are  unfrequent.  The  conduct  of  local  business 


66 

is  easy.  The  political  education  of  the  people  has  long 
been  complete ;  say  rather  that  it  was  complete  when  the 
people  first  set  foot  upon  the  soil.  In  New  England  no 
tradition  exists  of  a  distinction  of  ranks  ;  no  portion  of 
the  community  is  tempted  to  oppress  the  remainder ; 
and  the  abuses  which  may  injure  isolated  individuals 
are  forgotten  in  the  general  contentment  which  prevails. 
If  the  government  is  defective,  (and  it  would  no  doubt 
be  easy  to  point  out  its  deficiencies,)  the  fact  that  it 
really  emanates  from  those  it  governs,  and  that  it  acts, 
either  ill  or  well,  casts  the  protecting  spell  of  a  parental 
pride  over  its  faults.  No  term  of  comparison  disturbs 
the  satisfaction  of  the  citizen :  England  formerly  go- 
verned the  mass  of  the  colonies,  but  the  people  was  al- 
ways sovereign  in  the  township,  where  its  rule  is  not 
only  an  ancient  but  a  primitive  state. 

The  native  of  New  England  is  attached  to  his  town- 
ship because  it  is  independent  and  free  :  his  cooperation 
in  its  affairs  ensures  his  attachment  to  its  interest ;  the 
well-being  it  affords  him  secures  his  affection ;  and  its 
welfare  is  the  aim  of  his  ambition  and  of  his  future  ex- 
ertions :  he  takes  a  part  in  every  occurrence  in  the  place  ; 
he  practises  the  art  of  government  in  the  small  sphere 
within  his  reach ;  he  accustoms  himself  to  those  forms 
which  can  alone  ensure  the  steady  progress  of  liberty  ; 
he  imbibes  their  spirit ;  he  acquires  a  taste  for  order, 
comprehends  the  union  or  the  balance  of  powers,  and 
collects  clear  practical  notions  on  the  nature  of  his  duties 
and  the  extent  of  his  rights. 


THE  COUNTIES  OF  NEW  ENGLAND. 

THE  division  of  the  counties  in  America  has  considera- 
ble analogy  with  that  of  the  arrondissements  of  France. 
The  limits  of  the  counties  are  arbitrarily  laid  down,  and 


67 

the  various  districts  which  they  contain  have  no  neces- 
sary connexion,  no  common  tradition  or  natural  sympa- 
thy ;  their  object  is  simply  to  facilitate  the  administra- 
tion of  public  affairs. 

The  extent  of  the  township  was  too  small  to  contain  a 
system  of  judicial  institutions ;  each  county  has  how- 
ever a  court  of  justice*,  a  sheriff  to  execute  its  decrees, 
and  a  prison  for  criminals.  There  are  certain  wants 
which  are  felt  alike  by  all  the  townships  of  a  county ;  it 
is  therefore  natural  that  they  should  be  satisfied  by  a 
central  authority.  In  the  State  of  Massachusetts  this 
authority  is  vested  in  the  hands  of  several  magistrates, 
who  are  appointed  by  the  Governor  of  the  State,  with 
the  advice  f  of  his  council  J.  The  officers  of  the  county 
have  only  a  limited  and  occasional  authority,  which  is 
applicable  to  certain  predetermined  cases.  The  State 
and  the  townships  possess  all  the  power  requisite  to  con- 
duct public  business.  The  budget  of  the  county  is  only 
drawn  up  by  its  officers,  and  is  voted  by  the  legislature  §. 
There  is  no  assembly  which  directly  or  indirectly  repre- 
sents the  county  ;  it  has  therefore,  properly  speaking,  no 
political  existence. 

A  twofold  tendency  may  be  discerned  in  the  American 
constitutions,  which  impels  the  legislator  to  centralize 
the  legislative,  and  to  disperse  the  executive  power.  The 
township  of  New  England  has  in  itself  an  indestructible 
element  of  independence ;  but  this  distinct  existence 
could  only  be  fictitiously  introduced  into  the  county, 
where  its  utility  has  not  been  felt.  All  the  townships 


*  See  the  Actof  the  14th  February  1821.  Laws  of  Massachusetts, 
vol.  i.  p.  551. 

f  Seethe  Actof  the  20th  February  1819.  Laws  of  Massachusetts, 
vol.  ii.  p.  491. 

%  The  council  of  the  Governor  is  an  elective  body. 

§  See  the  Act  of  2nd  November  1791.  Laws  of  Massachusetts, 
vol,  i.  p.  61. 


68 

united  have  but  one  representation,  which  is  the  State, 
the  centre  of  the  national  authority :  beyond  the  action 
of  the  township  and  that  of  the  nation,  nothing  can  be 
said  to  exist  but  the  influence  of  individual  exertion. 


ADMINISTRATION  IN  NEW  ENGLAND. 

Administration  not  perceived  in  America. — Why  ?— The  Europeans 
believe  that  liberty  is  promoted  by  depriving  the  social  authority 
of  some  of  its  rights  ;  the  Americans,  by  dividing  its  exercise. — Al- 
most all  the  administration  confined  to  the  township,  and  divided 
amongst  the  town-officers. — No  trace  of  an  administrative  hierar- 
chy to  be  perceived  either  in  the  township,  or  above  it. — The  rea- 
son of  this. — How  it  happens  that  the  administration  of  the  State 
is  uniform. — Who  is  empowered  to  enforce  the  obedience  of  the 
township  and  the  county  to  the  law. — The  introduction  of  judicial 
power  into  the  administration. — Consequence  of  the  extension  of 
the  elective  principle  to  all  functionaries. — The  Justice  of  the  Peace 
in  New  England. — By  whom  appointed. — County  officer : — ensures 
the  administration  of  the  townships. — Court  of  Sessions. — Its  ac- 
tion.— Right  of  inspection  and  indictment  disseminated  like  the 
other  administrative  functions. — Informers  encouraged  by  the  divi- 
sion of  fines. 

NOTHING  is  more  striking  to  an  European  traveller  in 
the  United  States  than  the  absence  of  what  we  term  the 
Government,  or  the  Administration.  Written  laws  ex- 
ist in  America,  and  one  sees  that  they  are  daily  executed ; 
but  although  everything  is  in  motion,  the  hand  which 
gives  the  impulse  to  the  social  machine  can  nowhere  be 
discovered.  Nevertheless,  as  all  peoples  are  obliged  to 
have  recourse  to  certain  grammatical  forms,  which  are 
the  foundation  of  human  language,  in  order  to  express 
their  thoughts ;  so  all  communities  are  obliged  to  secure 
their  existence  by  submitting  to  a  certain  portion  of  au- 
thority, without  which  they  fall  a  prey  to  anarchy.  This 
authority  may  be  distributed  in  several  ways,  but  it 
must  always  exist  somewhere. 


69 

There  are  two  methods  of  diminishing  the  force  of  au- 
thority in  a  nation : 

The  first  is  to  weaken  the  supreme  power  in  its  very 
principle,  by  forbidding  or  preventing  society  from  acting 
in  its  own  defence  under  certain  circumstances.  To 
weaken  authority  in  this  manner  is  wThat  is  generally 
termed  in  Europe  to  lay  the  foundations  of  freedom. 

The  second  manner  of  diminishing  the  influence  of 
authority  does  not  consist  in  stripping  society  of  any  of 
its  rights,  nor  in  paralysing  its  efforts,  but  in  distribut- 
ing the  exercise  of  its  privileges  in  various  hands,  and 
in  multiplying  functionaries,  to  each  of  whom  the  degree 
of  power  necessary  for  him  to  perform  his  duty  is  en- 
trusted. There  may  be  nations  whom  this  distribution 
of  social  powers  might  lead  to  anarchy ;  but  in  itself  it 
is  not  anarchical.  The  action  of  authority  is  indeed  thus 
rendered  less  irresistible,  and  less  perilous,  but  it  is  not 
totally  suppressed. 

The  revolution  of  the  United  States  was  the  result 
of  a  mature  and  deliberate  taste  for  freedom,  not  of  a 
vague  or  ill-defined  craving  for  independence.  It  con- 
tracted no  alliance  with  the  turbulent  passions  of  anar- 
chy ;  but  its  course  was  marked,  on  the  contrary,  by  an 
attachment  to  whatever  was  lawful  and  orderly. 

It  was  never  assumed  in  the  United  States  that  the 
citizen  of  a  free  country  has  a  right  to  do  whatever  he 
pleases  ;  on  the  contrary,  social  obligations  were  there 
imposed  upon  him  more  than  anywhere  else ;  no  idea 
was  ever  entertained  of  attacking  the  principles,  or  of 
contesting  the  rights  of  society ;  but  the  exercise  of  its 
authority  was  divided,  to  the  end  that  the  office  might 
be  powerful  and  the  officer  insignificant,  and  that  the 
community  should  be  at  once  regulated  and  free.  In 
no  country  in  the  world  does  the  law  hold  so  absolute  a 
language  as  in  America ;  and  in  no  country  is  the  right 


70 

of  applying  it  vested  in  so  many  hands.  The  admini- 
strative power  in  the  United  States  presents  nothing 
either  central  or  hierarchical  in  its  constitution,  which 
accounts  for  its  passing  unperceived.  The  power  exists, 
but  its  representative  is  not  to  be  perceived. 

We  have  already  seen  that  the  independent  townships 
of  New  England  protect  their  own  private  interests ; 
and  the  municipal  magistrates  are  the  persons  to  whom 
the  execution  of  the  laws  of  the  State  is  most  frequently 
entrusted*.  Besides  the  general  laws,  the  State  some- 
times passes  general  police  regulations ;  but  more  com- 
monly the  townships  and  town-officers,  conjointly  with 
the  justices  of  the  peace,  regulate  the  minor  details  of 
social  life,  according  to  the  necessities  of  the  different 
localities,  and  promulgate  such  enactments  as  concern 
the  health  of  the  community,  and  the  _  peace  as  well  as 
morality  of  the  citizens  f.  Lastly,  these  municipal  ma- 
gistrates provide,  of  their  own  accord,  and  without  any 
delegated  powers,  for  those  unforeseen  emergencies  which 
frequently  occur  in  society  J. 

It  results  from  what  \ve  have  said,  that  in  the  State 
of  Massachusetts  the  administrative  authority  is  almost 
entirely  restricted  to  the  township  §,  but  that  it  is  distri- 

*  See  '  The  Town-Officer,'  especially  at  the  words  SELECTMEN, 
ASSESSORS,  COLLECTORS,  SCHOOLS,  SURVEYORS  OF  HIGHWAYS.  I  take 
one  example  in  a  thousand :  the  State  prohibits  travelling  on  the 
Sunday;  the  tything-men,  who  are  town-officers,  are  especially  charged 
to  keep  watch  and  to  execute  the  law.  See  the  Laws  of  Massachu- 
setts, vol.  i.  p.  410. 

The  selectmen  draw  up  the  lists  of  electors  for  the  election  of  the 
governor,  and  transmit  the  result  of  the  ballot  to  the  secretary  of  the 
State.  See  Act  of  the  24th  Feb.  1796  :  Id.,  vol.  i.  p.  488. 

f  Thus,  for  instance,  the  selectmen  authorize  the  construction  of 
drains,  point  out  the  proper  sites  for  slaughter-houses  and  other  trades 
which  are  a  nuisance  to  the  neighbourhood.  See  the  Act  of  the  7th 
June  1785  :'  Id.,  vol.  i.  p.  193. 

I  The  selectmen  take  measures  for  the  security  of  the  public  in 
case  of  contagious  diseases,  conjointly  with  the  justices  of  the  peace. 
See  Act  of  the  22nd  June  1797  :  vol.  i.  p.  539. 

§  I  say  almost,  for  there  are  various  circumstances  in  the  annals 


buted  among  a  great  number  of  individuals.  In  the 
French  commune  there  is  properly  but  one  official  func- 
tionary, namely,  the  Maire ;  and  in  New  England  we 
have  seen  that  there  are  nineteen.  These  nineteen 
functionaries  do  not  in  general  depend  upon  one  an- 
other. The  law  carefully  prescribes  a  circle  of  action 
to  each  of  these  magistrates ;  and  within  that  circle  they 
have  an  entire  right  to  perform  their  functions  inde- 
pendently of  any  other  authority.  Above  the  township 
scarcely  any  trace  of  a  series  of  official  dignities  is  to  be 
found.  It  sometimes  happens  that  the  county  officers 
alter  a  decision  of  the  townships,  or  town  magistrates  *, 
but  in  general  the  authorities  of  the  county  have  no 
right  to  interfere  with  the  authorities  of  the  township  f, 
except  in  such  matters  as  concern  the  county. 

The  magistrates  of  the  township,  as  well  as  those  of 
the  county,  are  bound  to  communicate  their  acts  to  the 
central  government  in  a  very  small  number  of  predeter- 
mined cases  J.  But  the  central  government  is  not  re- 
presented by  an  individual  whose  business  it  is  to  pub- 
lish police  regulations  and  ordonnances  enforcing  the 

of  a  township  which  are  regulated  hy  the  justice  of  the  peace  in  his 
individual  capacity,  or  by  the  justices  of  the  peace  assembled  in  the 
chief  town  of  the  county:  thus  licenses  are  granted  by  the  justices. 
See  the  Act  of  the  28th  Feb.  1787  :  vol.  i.  p.  297. 

*  Thus  licenses  are  only  granted  to  such  persons  as  can  produce  a 
certificate  of  good  conduct  from  the  selectmen.  If  the  selectmen  re- 
fuse to  give  the  certificate,  the  party  may  appeal  to  the  justices  as- 
sembled in  the  Court  of  Sessions  ;  and  they  may  grant  the  license. 
See  Act  of  12th  March  1808  :  vol.  ii.  p.  186. 

The  townships  have  the  right  to  make  by-laws,  and  to  enforce 
them  by  fines  which  are  fixed  by  law ;  but  these  by-laws  must  be  ap- 
proved by  the  Court  of  Sessions.  See  Act  of  23rd  March  1786  :  vol. 
i.  p.  254. 

•f  In  Massachusetts  the  county  magistrates  are  frequently  called 
upon  to  investigate  the  act  of  the  town  magistrates ;  but  it  will  be 
shown  further  on  that  this  investigation  is  a  consequence,  not  of  their 
administrative,  but  of  their  judicial  power. 

J  The  town  committees  of  schools  are  obliged  to  make  an  annual 
report  to  the  secretary  of  the  State  on  the  condition  of  the  school. 
See  Act  of  10th  March  1827:  vol.  iii.  p.  1S3. 


72 

execution  of  the  laws ;  to  keep  up  a  regular  communi- 
cation with  the  officers  of  the  township  and  the  county ; 
to  inspect  their  conduct,  to  direct  their  actions,  or  to  re- 
primand their  faults.  There  is  no  point  which  serves  as 
a  centre  to  the  radii  of  the  administration. 

What,  then,  is  the  uniform  plan  on  which  the  govern- 
ment is  conducted,  and  how  is  the  compliance  of  the 
counties  and  their  magistrates,  or  the  townships  and 
their  officers,  enforced  ?  In  the  States  of  New  England 
the  legislative  authority  embraces  more  subjects  than  it 
does  in  France ;  the  legislator  penetrates  to  the  very 
core  of  the  administration ;  the  law  descends  to  the  most 
minute  details  ;  the  same  enactment  prescribes  the  prin- 
ciple and  the  method  of  its  application,  and  thus  imposes 
a  multitude  of  strict  and  rigorously  denned  obligations 
on  the  secondary  functionaries  of  the  State.  The  con- 
sequence of  this  is,  that  if  all  the  secondary  functiona- 
ries of  the  administration  conform  to  the  law,  society  in 
all  its  branches  proceeds  with  the  greatest  uniformity ; 
the  difficulty  remains  of  compelling  the  secondary  func- 
tionaries of  the  administration  to  conform  to  the  law. 
It  may  be  affirmed,  that,  in  general,  society  has  only 
two  methods  of  enforcing  the  execution  of  the  laws  at 
its  disposal ;  a  discretionary  power  may  be  entrusted  to 
a  superior  functionary  of  directing  all  the  others,  and  of 
cashiering  them  in  case  of  disobedience ;  or  the  courts 
of  justice  may  be  authorized  to  inflict  judicial  penalties 
on  the  offender :  but  these  two  methods  are  not  always 
available. 

The  rii*ht  of  directing  a  civil  officer  presupposes  that 
of  cashiering  him  if  he  does  not  obey  orders,  and  of  re- 
warding him  by  promotion  if  he  fulfils  his  duties  with 
propriety.  But  an  elected  magistrate  can  neither  be 
cashiered  nor  promoted.  All  elective  functions  are  in- 
alienable until  their  term  is  expired.  In  fact,  the  elected 


73 

magistrate  has  nothing  either  to  expect  or  to  fear  from 
his  constituents :  and  when  all  public  offices  are  filled 
by  ballot,  there  can  be  no  series  of  official  dignities,  be- 
cause the  double  right  of  commanding  and  of  enforcing 
obedience  can  never  be  vested  in  the  same  individual, 
and  because  the  power  of  issuing  an  order  can  never  be 
joined  to  that  of  inflicting  a  punishment  or  bestowing  a 
reward. 

The  communities  therefore  in  which  the  secondary 
functionaries  of  the  government  are  elected,  are  perforce 
obliged  to  make  great  use  of  judicial  penalties  as  a  means 
of  administration.  This  is  not  evident  at  first  sight ;  for 
those  in  power  are  apt  to  look  upon  the  institution  of 
elective  functionaries  as  one  concession,  and  the  subjec- 
tion of  the  elected  magistrate  to  the  judges  of  the  land 
as  another.  They  are  equally  averse  to  both  these  in- 
novations ;  and  as  they  are  more  pressingly  solicited  to 
grant  the  former  than  the  latter,  they  accede  to  the  elec- 
tion of  the  magistrate,  and  leave  him  independent  of  the 
judicial  power.  Nevertheless,  the  second  of  these  mea- 
sures is  the  only  thing  that  can  possibly  counterbalance 
the  first ;  and  it  will  be  found  that  an  elective  authority 
which  is  not  subject  to  judicial  power  will,  sooner  or 
later,  either  elude  all  control  or  be  destroyed.  The 
courts  of  justice  are  the  only  possible  medium  between 
the  central  power  and  the  administrative  bodies  :  they 
alone  can  compel  the  elected  functionary  to  obey,  with- 
out violating  the  rights  of  the  elector.  The  extension  of 
judicial  power  in  the  political  world  ought  therefore  to 
be  in  the  exact  ratio  of  the  extension  of  elective  offices  : 
if  these  two  institutions  do  not  go  hand  in  hand,  the 
State  must  fall  into  anarchy  or  into  subjection. 

It  has  always  been  remarked  that  habits  of  legal  bu- 
siness do  not  render  men  apt  to  the  exercise  of  admini- 
strative authority.  The  Americans  have  borrowed  from 

VOL.  I.  E 


74 

the  English,  their  fathers,  the  idea  of  an  institution 
Avhich  is  unknown  upon  the  continent  of  Europe:  I 
allude  to  that  of  the  Justices  of  the  Peace. 

The  Justice  of  the  Peace  is  a  sort  of  mezzo  termine 
between  the  magistrate  and  the  man  of  the  world,  be- 
tween the  civil  officer  and  the  judge.  A  justice  of  the 
peace  is  a  well-informed  citizen,  though  he  is  not  neces- 
sarily versed  in  the  knowledge  of  the  laws.  His  office 
simply  obliges  him  to  execute  the  police  regulations  of 
society ;  a  task  in  which  good  sense  and  integrity  are  of 
more  avail  than  legal  science.  The  justice  introduces 
into  the  administration  a  certain  taste  for  established 
forms  and  publicity,  which  renders  him  a  most  unser- 
viceable instrument  of  despotism ;  and,  on  the  other 
hand,  he  is  not  blinded  by  those  superstitions  which 
render  legal  officers  unfit  members  of  a  government. 
The  Americans  have  adopted  the  system  of  the  English 
/justices  of  the  peace,  but  they  have  deprived  it  of  that 
aristocratic  character  which  is  discernible  in  the  mother- 
country.  The  Governor  of  Massachusetts*  appoints  a 
certain  number  of  justices  of  the  peace  in  every  county, 
whose  functions  last  seven  years f.  He  further  desig- 
nates three  individuals  from  amongst  the  whole  body  of 
justices,  who  form  in  each  county  what  is  called  the 
Court  of  Sessions.  The  Justices  take  a  personal  share 
in  public  business ;  they  are  sometimes  entrusted  with 
administrative  functions  in  conjunction  with  elected 
officers  J ;  they  sometimes  constitute  a  tribunal,  before 
which  the  magistrates  summarily  prosecute  a  refractory 

*  We  shall  hereafter  learn  what  a  Governor  is :  I  shall  content 
myself  with  remarking  in  this  place  that  he  represents  the  executive 
power  of  the  whole  State. 

f,  See  the  Constitution  of  Massachusetts,  Chap.  II.  sect.  1.  §  9; 
Chap.  III.  §  3. 

%  Thus,  for  example,  a  stranger  arrives  in  a  township  from  a 
country  where  a  contagious  disease  prevails,  and  he  falls  ill.  Two 
justices  of  the  peace  can,  with  the  assent  of  the  selectmen,  order  the 


75 

citizen,  or  the  citizens  inform  against  the  abuses  of  the 
magistrate.  But  it  is  in  the  Court  of  Sessions  that  they 
exercise  their  most  important  functions.  This  court 
meets  twice  a  year  in  the  county  town ;  in  Massachu- 
setts it  is  empowered  to  enforce  the  obedience  of  the 
greater  number*  of  public  officers  f.  It  must  be  ob- 
served, that  in  the  State  of  Massachusetts  the  Court  of 
Sessions  is  at  the  same  time  an  administrative  body,  pro- 
perly so  called,  and  a  political  tribunal.  It  has  been  as- 
serted that  the  county  is  a  purely  administrative  division. 
The  Court  of  Sessions  presides  over  that  small  number 
of  affairs  which,  as  they  concern  several  townships,  or 
all  the  townships  of  the  county  in  common,  cannot  be 
entrusted  to  any  one  of  them  in  particular  J.  In  all  that 
concerns  county  business,  the  duties  of  the  Court  of 
Sessions  are  therefore  purely  administrative ;  and  if  in  its 
investigations  it  occasionally  borrows  the  forms  of  judi- 
cial procedure,  it  is  only  w  ith  a  view  to  its  own  informa- 
tion §,  or  as  a  guarantee  to  the  community  over  which 

sheriff  of  the  county  to  remove  and  take  care  of  him.  Act  of  22nd 
June  1797:  vol.  i.  p.  540. 

In  general  the  justices  interfere  in  all  the  important  acts  of  the  ad- 
ministration, and  give  them  a  semi-judicial  character. 

*  I  say  the  greater  number,  because  certain  administrative  misde- 
meanors are  brought  before  the  ordinary  tribunals.  If,  for  instance, 
a  township  refuses  to  make  the  necessary  expenditure  for  its  school?, 
or  to  name  a  school-committee,  it  is  liable  to  a  fine.  But  this  pe- 
nalty is  pronounced  by  the  Supreme  Judicial  Court  or  the  Court  of 
Common  Pleas.  See  Act  of  10th  March  1827,  Laws  of  Massachu- 
setts, vol.  iii.  p.  190.  Or  when  a  township  neglects  to  provide  the 
necessary  war-stores.  Act  of  21st  February  1822,  Id.  vol.  ii.  p.  570. 

f  In  their  individual  capacity  the  Justices  of  the  Peace  take  a  part 
in  the  business  of  the  counties  and  townships.  The  more  important 
acts  of  the  municipal  government  are  rarely  decided  upon  without 
the  cooperation  of  one  of  their  body. 

J  These  affairs  may  be  brought  under  the  following  heads :  1.  The, 
erection  of  prisons  and  courts  of  justice.  2.  The  county  budget, 
which  is  afterwards  voted  by  the  State.  3.  The  assessment  of  the 
taxes  so  voted.  4.  Grants  of  certain  patents.  5.  The  laying  down 
and  repairs  of  the  county  roads. 

§  Thus,  when  a  road  is  under  consideration,  almost  all  difficulties 
are  disposed  of  by  the  aid  of  the  Jury. 

E  2 


it  presides.  But  when  the  administration  of  the  town- 
ship is  brought  before  it,  it  almost  always  acts  as  a  ju- 
dicial body,  and  in  some  few  cases  as  an  administrative 
assembly. 

The  first  difficulty  is  to  procure  the  obedience  of  an 
authority  as  entirely  independent  of  the  general  laws  of 
the  State  as  the  township  is.  We  have  stated  that  as- 
sessors are  annually  named  by  the  town-meetings  to 
levy  the  taxes.  If  a  township  attempts  to  evade  the 
payment  of  the  taxes  by  neglecting  to  name  its  assessors, 
the  Court  of  Sessions  condemns  it  to  a  heavy  penalty*. 
The  fine  is  levied  on  each  of  the  inhabitants ;  and  the 
sheriff  of  the  county,  who  is  an  officer  of  justice,  executes 
the  mandate.  Thus  it  is  that  in  the  United  States  the 
authority  of  the  Government  is  mysteriously  concealed 
under  the  forms  of  a  judicial  sentence ;  and  its  influence 
is  at  the  same  time  fortified  by  that  irresistible  power 
with  which  men  have  invested  the  formalities  of  law. 

These  proceedings  are  easy  to  follow,  and  to  under- 
stand. The  demands  made  upon  a  township  are  in  ge- 
neral plain  and  accurately  defined;  they  consist  in  a 
simple  fact  without  any  complication,  or  in  a  principle 
without  its  application  in  detail  f.  But  the  difficulty 
increases  when  it  is  not  the  obedience  of  the  township, 
but  that  of  the  town-officers,  which  is  to  be  enforced. 
All  the  reprehensible  actions  of  which  a  public  func- 


*  See  Act  of  20th  February  1 786,  Laws  of  Massachusetts,  vol.  i. 
p.  217. 

t  There  is  an  indirect  method  of  enforcing  the  obedience  of  a 
township.  Suppose  that  the  funds  which  the  law  demands  for  the 
maintenance  of  the  roads  have  not  been  voted;  the  town-surveyor  is 
then  authorized,  ex  officio,  to  levy  the  supplies.  As  he  is  personally 
responsible  to  private  individuals  for  the  state  of  the  roads,  and  in- 
dictable before  the  Court  of  Sessions,  he  is  sure  to  employ  the  extra- 
ordinary right  which  the  law  gives  him  against  the  township.  Thus 
by  threatening  the  officer,  the  Court  of  Sessions  exacts  compliance 
from  the  town.  See  Act  of  5th  March  1787,  Id.  vol.  i.  p.  305. 


77 

tionary  may  be  guilty  are  reducible  to  the  following 
heads : 

He  may  execute  the  law  without  energy  or  zeal ; 

He  may  neglect  to  execute  the  law  ; 

He  may  do  what  the  law  enjoins  him  not  to  do. 

The  last  two  violations  of  duty  can  alone  come  under 
the  cognizance  of  a  tribunal ;  a  positive  and  appreciable 
fact  is  the  indispensable  foundation  of  an  action  at  law. 
Thus,  if  the  selectmen  omit  to  fulfil  the  legal  formalities 
usual  at  town-elections,  they  may  be  condemned  to  pay 
a  fine*  ;  but  when  the  public  officer  performs  his  duty 
without  ability,  and  when  he  obeys  the  letter  of  the  law 
without  zeal  or  energy,  he  is  at  least  beyond  the  reach 
of  judicial  interference.  The  Court  of  Sessions,  even 
when  it  is  invested  writh  its  administrative  powers,  is  in 
this  case  unable  to  compel  him  to  a  more  satisfactory 
obedience.  The  fear  of  removal  is  the  only  check  to 
these  quasi-offences ;  and  as  the  Court  of  Sessions  does 
not  originate  the  town-authorities,  it  cannot  remove 
functionaries  whom  it  does  not  appoint.  Moreover,  a 
perpetual  investigation  would  be  necessary  to  convict 
the  subordinate  officer  of  negligence  or  lukewarmness  ; 
and  the  Court  of  Sessions  sits  but  twice  a  year,  and  then 
only  judges  such  offences  as  are  brought  before  its  no- 
tice. The  only  security  of  that  active  and  enlightened 
obedience,  which  a  court  of  justice  cannot  impose  upon 
public  officers,  lies  in  the  possibility  of  their  arbitrary 
removal.  In  France  this  security  is  sought  for  in  powers 
exercised  by  the  heads  of  the  administration ;  in  America 
it  is  sought  for  in  the  principle  of  election. 

Thus,  to  recapitulate  in  a  few  words  what  I  have  been 
showing : 

If  a  public  officer  in  New  England  commits  a  crime 
in  the  exercise  of  his  functions,  the  ordinary  courts  of 

*  Laws  of  Massachusetts,  vol.  ii.  p.  45. 


justice  are  always  called  upon  to  pass  sentence  upon 
him. 

If  he  commits  a  fault  in  his  official  capacity,  a  purely 
administrative  tribunal  is  empowered  to  punish  him ; 
and,  if  the  affair  is  important  or  urgent,  the  judge  sup- 
plies the  omission  of  the  functionary*. 

Lastly,  if  the  same  individual  is  guilty  of  one  of  those 
intangible  offences,  of  which  human  justice  has  no  cog- 
nizance, he  annually  appears  before  a  tribunal  from 
which  there  is  no  appeal,  which  can  at  once  reduce  him 
to  insignificance,  and  deprive  him  of  his  charge.  This 
system  undoubtedly  possesses  great  advantages,  but  its 
execution  is  attended  with  a  practical  difficulty  which  it 
is  important  to  point  out. 

I  have  already  observed  that  the  administrative  tri- 
bunal, which  is  called  the  Court  of  Sessions,  has  no 
right  of  inspection  over  the  town-officers.  It  can  only 
interfere  when  the  conduct  of  a  magistrate  is  specially 
brought  under  its  notifce ;  and  this  is  the  delicate  part 
of  the  system.  The  Americans  of  New  England  are  un- 
acquainted with  the  office  of  public  prosecutor  in  the 
Court  of  Sessions  f,  and  it  may  readily  be  perceived  that 
it  could  not  have  been  established  without  difficulty.  If 
an  accusing  magistrate  had  merely  been  appointed  in 
the  chief  town  of  each  county,  and  if  he  had  been  unas- 
sisted by  agents  in  the  townships,  he  would  not  have  been 
better  acquainted  with  what  was  going  on  in  the  county 
than  the  members  of  the  Court  of  Sessions.  But  to  ap- 
point agents  in  each  township  would  have  been  to  cen- 
tre in  his  person  the  most  formidable  of  powers,  that  of 

*  If,  for  instance,  a  township  persists  in  refusing  to  name  its  as- 
sessors, the  Court  of  Sessions  nominates  them  ;  and  the  magistrates 
thus  appointed  are  invested  with  the  same  authority  as  elected  offi- 
cers. See  the  Act  quoted  above,  20th  Feb.  1 787. 

•f"  I  say  the  Court  of  Sessions,  because  in  common  courts  there  is  a 
magistrate  who  exercises  some  of  the  functions  of  a  public  prosecutor. 


79 

a  judicial  administration.  Moreover,  laws  are  the  chil- 
dren of  habit,  and  nothing  of  the  kind  exists  in  the  le- 
gislation of  England.  The  Americans  have  therefore 
divided  the  offices  of  inspection  and  of  prosecution  as 
well  as  all  the  other  functions  of  the  administration. 
Grand-jurors  are  bound  by  the  law  to  apprize  the  court 
to  which  they  belong  of  all  the  misdemeanors  which 
may  have  been  committed  in  their  county*.  There  are 
•certain  great  offences  which  are  officially  prosecuted  by 
the  State  f;  but  more  frequently  the  task  of  punishing 
delinquents  devolves  upon  the  fiscal  officer,  whose  pro- 
vince it  is  to  receive  the  fine  :  thus  the  treasurer  of  the 
township  is  charged  with  the  prosecution  of  such  ad- 
ministrative offences  as  fall  under  his  notice.  But 
a  more  especial  appeal  is  made  by  American  legisla- 
tion to  the  private  interest  of  the  citizen  J  ;  and  this 
great  principle  is  constantly  to  be  met  with  in  studying 
the  laws  of  the  United  States.  American  legislators  are 
more  apt  to  give  men  credit  for  intelligence  than  for 
honesty ;  and  they  rely  not  a  little  on  personal  cupidity 
for  the  execution  of  the  laws.  When  an  individual  is 
really  and  sensibly  injured  by  an  administrative  abuse, 
it  is  natural  that  his  personal  interest  should  induce  him 
to  prosecute.  But  if  a  legal  formality  be  required,  which,' 
however  advantageous  to  the  community,  is  of  small 
importance  to  individuals,  plaintiffs  may  be  less  easily 
found  ;  and  thus,  by  a  tacit  agreement,  the  laws  might 
fall  into  disuse.  Reduced  by  their  system  to  this  extre- 
mity, the  Americans  are  obliged  to  encourage  informers 

*  The  Grand-jurors  are,  for  instance,  bound  to  inform  the  Court 
of  the  bad  state  of  the  roads.  Laws  of  Massachusetts,  vol.  i.  p.  308'. 

f  If,  for  instance,  the  treasurer  of  the  county  holds  back  his  ac- 
counts. Laws  of  Massachusetts,  vol.  i.  p.  406. 

I  Thus,  if  a  private  individual  breaks  down  or  is  wounded  incon- 
sequence of  the  badness  of  a  road,  he  can  sue  the  township  or  the 
county  for  damages  at  the  sessions.  Laws  of  Massachusetts,  vol.  i. 
p.  309. 


80 

by  bestowing  on  them  a  portion  of  the  penalty  in  cer- 
tain cases*;  and  to  ensure  the  execution  of  the  laws  by 
the  dangerous  expedient  of  degrading  the  morals  of  the 
people. 

The  only  administrative  authority  above  the  county  ma- 
gistrates is,  properly  speaking,  that  of  the  Government. 


GENERAL  REMARKS  ON  THE  ADMINISTRATION  OF 
THE  UNITED  STATES. 

Differences  of  the  States  of  the  Union  in  their  system  of  administra- 
tion.— Activity  and  perfection  of  the  local  authorities  decreases  to- 
wards the  South. — Power  of  the  magistrate  increases  ;  that  of  the 
elector  diminishes. — Administration  passes  from  the  township  to 
the  county. — States  of  New  York  :  Ohio  :  Pennsylvania. — Princi- 
ples of  administration  applicable  to  the  whole  Union. — Election  of 
public  officers,  and  inalienability  of  their  functions. — Absence  of 
gradation  of  ranks. — Introduction  of  judicial  resources  into  the 
administration. 

I  HAVE  already  premised  that  after  having  examined 
the  constitution  of  the  township  and  the  county  of  New 
England  in  detail,  I  should  take  a  general  view  of  the 
remainder  of  the  Union.  Townships  and  a  local  activity 
exist  in  every  State ;  but  in  no  part  of  the  confederation 
is  a  township  to  be  met  with  precisely  similar  to  that 
of  New  England.  The  more  we  descend  towards  the 

*  In  cases  of  invasion  or  insurrection,  if  the  town-officers  neglect 
to  furnish  the  necessary  stores  and  ammunition  for  the  militia,  the 
township  may.  be  condemned  to  a  fine  of  from  200  to  500  dollars.  It 
may  readily  be  imagined  that  in  such  a  case  it  might  happen  that  no 
one  cared  to  prosecute;  hence  the  law  adds  that  all  the  citizens  may 
indict  offences  of  this  kind,  and  that  half  the  fine  shall  belong  to  the 
plaintiff.  See  Act  of  6th  March  1810,  vol.  ii.  p.  236.  The  same 
clause  is  frequently  to  be  met  with  in  the  Laws  of  Massachusetts. 
Not  only  are  private  individuals  thus  incited  to  prosecute  the  public 
officers,  but  the  public  officers  are  encouraged  in  the  same  manner 
to  bring  the  disobedience  of  private  individuals  to  justice.  If  a  citi- 
zen refuses  to  perform  the  work  which  has  been  assigned  to  him  upon 
a  road,  the  road-surveyor  may  prosecute  him,  and  he  receives  half, 
the  penalty  for  himself.  See  the  Laws  above  quoted,  vol.  i.  p.  308. 


81 

South,  the  less  active  does  the  business  of  the  township 
or  parish  become  ;  the  number  of  magistrates,  of  func^ 
tions,  and  of  rights  decreases  ;  the  population  exer- 
cises a  less  immediate  influence  on  affairs ;  town-meet-: 
ings  are  less  frequent,  and  the  subjects  of  debate  less 
numerous.  The  power  of  the  elected  magistrate  is  aug- 
mented, and  that  of  the  elector  diminished,  whilst  the 
public  spirit  of  the  local  communities  is  less  awakened 
and  less  influential*. 

These  differences  may  be  perceived  to  a  certain  extent 
in  the  State  of  New  York ;  they  are  very  sensible  in 
Pennsylvania ;  but  they  become  less  striking  as  we  ad- 
vance to  the  North-west.  The  majority  of  the  emigrants 
who  settle  in  the  North-western  States  are  natives  of  New 
England,  and  they  carry  the  habits  of  their  mother- 
country  with  them  into  that  which  they  adopt.  A 
township  in  Ohio  is  by  no  means  dissimilar  from  a 
township  in  Massachusetts. 

We  have  seen  that  in  Massachusetts  the  principal 
part  of  the  public  administration  lies  in  the  township. 
It  forms  the  common  centre  of  the  interests  and  affec- 
tions of  the  citizens.  But  this  ceases  to  be  the  case  as 
we  descend  to  States  in  which  knowledge  is  less  gene- 
rally diffused,  and  where  the  township  consequently 
offers  fewer  guarantees  of  a  wise  and  active  administra- 
tion. As  we  leave  New  England,  therefore,  we  find  that 


*  For  details  see  the  Revised  Statutes  of  the  State  of  New  York, 
Part  I.  chap.  xi.  vol.  i.  pp.  336-364,  entitled,  '  Of  the  powers,  duties, 
and  privileges  of  towns.' 

See  in  the  Digest  of  the  Laws  of  Pennsylvania,  the  words  ASSES 
SORS,  COLLECTORS,  CONSTABLES,  OVERSEER  OF  THE  POOR,  SUPERVI- 
SORS OF  HIGHWAYS  :  and  in  the  Acts  of  a  general  nature  of  the  State 
of  Ohio,  the  Act  of  the  25th  February  1834,  relating  to  townships, 
p.  412;  besides  the  peculiar  dispositions  relating  to  divers  town- 
officers,  such  as  Township's  Clerk,  Trustees,  Overseers  of  the  Poor, 
Fence-viewers,  Appraisers  of  Property,  Township's  Treasurer,  Con- 
stables, Supervisors  of  Highways. 

£  5 


82 

the  importance  of  the  town  is  gradually  transferred  to 
the  county,  which  becomes  the  centre  of  administration, 
and  the  intermediate  power  between  the  Government 
and  the  citizen.  In  Massachusetts  the  business  of  the 
county  is  conducted  by  the  Court  of  Sessions,  which  is 
composed  of  a  quorum  named  by  the  Governor  and  his 
council ;  but  the  county  has  no  representative  assembly, 
and  its  expenditure  is  voted  by  the  national  legislature. 
In  the  great  State  of  New  York,  on  the  contrary,  and  in 
those  of  Ohio  and  Pennsylvania,  the  inhabitants  of  each 
county  choose  a  certain  number  of  representatives,  who 
constitute  the  assembly  of  the  county*.  The  county 
assembly  has  the  right  of  taxing  the  inhabitants  to  a 
certain  extent ;  and  in  this  respect  it  enjoys  the  privi- 
leges of  a  real  legislative  body:  at  the  same  time  it 
exercises  an  executive  power  in  the  county,  frequently 
directs  the  administration  of  the  townships,  and  restricts 
their  authority  within  much  narrower  bounds  than  in 
Massachusetts. 

Such  are  the  principal  differences  which  the  systems 
of  county  and  town  administration  present  in  the  Fe- 
deral States.  Were  it  my  intention  to  examine  the 
provisions  of  American  law  minutely,  I  should  have  to 
point  out  still  further  differences  in  the  executive  details 
of  the  several  communities.  But  what  I  have  already 
said  may  suffice  to  show  the  general  principles  on  which 
the  administration  of  the  United  States  rests.  These 
principles  are  differently  applied ;  their  consequences  are 
more  or  less  numerous  in  various  localities ;  but  they  are 

*  See  the  Revised  Statutes  of  the  State  of  New  York,  Part  I. 
chap,  xi  vol.  i.  p.  310.  Id.,  chap.  xii.  p.  366  :  also  in  the  Acts  of 
the  State  of  Ohio,  an  act  relating  to  county  commissioners,  25th  Feb- 
ruary 1 624,  p.  263.  See  the  Digest  of  the  Laws  of  Pennsylvania, 
at  the  words  COUNTY-RATES  and  LEVIES,  p.  170. 

In  the  State  of  New  York  each  township  elects  a  representative, 
who  has  a  share  in  the  administration  of  the  county  as  well  as  in 
that  of  the  township. 


83 

always  substantially  the  same.  The  laws  differ,  and 
their  outward  features  change,  but  their  character  does 
not  vary.  If  the  township  and  the  county  are  not 
everywhere  constituted  in  the  same  manner,  it  is  at  least 
true  that  in  the  United  States  the  county  and  the 
township  are  always  based  upon  the  same  principle, 
namely,  that  every  one  is  the  best  judge  of  what  con- 
cerns himself  alone,  and  the  person  most  able  to  supply 
his  private  wants.  The  township  and  the  county  are 
therefore  bound  to  take  care  of  their  special  interests  : 
the  State  governs,  but  it  does  not  interfere  with  their 
administration.  Exceptions  to  this  rule  may  be  met 
with,  but  not  a  contrary  principle. 

The  first  consequence  of  this  doctrine  has  been  to 
cause  all  the  magistrates  to  be  chosen  either  by,  or  at 
least  from  amongst,  the  citizens.  As  the  officers  are 
everywhere  elected,  or  appointed  for  a  certain  period,  it 
has  been  impossible  to  establish  the  rules  of  a  depen- 
dent series  of  authorities ;  there  are  almost  as  many  in- 
dependent functionaries  as  there  are  functions,  and  the 
executive  power  is  disseminated  in  a  multitude  of  hands. 
Hence  arose  the  indispensable  necessity  of  introducing 
the  control  of  the  courts  of  justice  over  the  administra- 
tion, and  the  system  of  pecuniary  penalties,  by  which 
the  secondary  bodies  and  their  representatives  are  con- 
strained to  obey  the  laws.  This  system  obtains  from 
one  end  of  the  Union  to  the  other.  The  power  of 
punishing  the  misconduct  of  public  officers,  or  of  per- 
forming the  part  of  the  executive,  in  urgent  cases,  has 
not,  however,  been  bestowed  on  the  same  judges  in  all 
the  States.  The  Anglo-Americans  derived  the  institu- 
tion of  Justices  of  the  Peace  from  a  common  source ;  but 
although  it  exists  in  all  the  States,  it  is  not  always 
turned  to  the  same  use.  The  justices  of  the  peace 
everywhere  participate  in  the  administration  of  the 


84 

townships  and  the  counties*,  either  as  public  officers  or 
as  the  judges  of  public  misdemeanors,  but  in  most  of 
the  States  the  more  important  classes  of  public  offences 
come  under  the  cognizance  of  the  ordinary  tribunals. 

*/ 

The  election  of  public  officers,  or  the  inalienability  of 
their  functions,  the  absence  of  a  gradation  of  powers, 
and  the  introduction  of  a  judicial  control  over  the  se- 
condary branches  of  the  administration,  are  the  univer- 
sal characteristics  of  the  American  system  from  Maine 
to  the  Floridas.  In  some  States  (and  that  of  New  York 
has  advanced  most  in  this  direction)  traces  of  a  cen- 
tralized administration  begin  to  be  discernible.  In  the 
State  of  New  York  the  officers  of  the  central  govern- 
ment exercise,  in  certain  cases,  a  sort  of  inspection  or 
control  over  the  secondary  bodies  f.  At  other  times 
they  constitute  a  court  of  appeal  for  the  decision  of 
affairs  J.  In  the  State  of  New  York  judicial  penalties 

*  In  some  of  the  Southern  States  the  county-courts  are  charged 
with  all  the  details  of  the  administration.  See  the  Statutes  of  the 
State  of  Tennessee,  arts.  JUDICIARY,  TAXES,  &c. 

•j-  For  instance,  the  direction  of  public  instruction  centres  in  the 
hands  of  the  Government.  The  legislature  names  the  members  of 
the  University,  who  are  denominated  Regents ;  the  Governor  and 
the  Lieutenant-Governor  of  the  State  are  necessarily  of  the  number. 
Revised  Statutes,  vol.  i.  p.  455.  The  Regents  of  the  University 
annually  visit  the  colleges  and  academies,  and  make  their  report  to 
the  legislature.  Their  superintendence  is  not  inefficient,  for  several 
reasons  :  the  colleges  in  order  to  become  corporations  stand  in  need 
of  a  charter,  which  is  only  granted  on  the  recommendation  of  the 
Regents  :  every  year  funds  are  distributed  by  the  State  for  the 
encouragement  of  learning,  and  the  Regents  are  the  distributors 
of  this  money.  See  Chap.  xv.  'Public  Instruction,'  Revised  Sta- 
tutes, vol.  i.  p.  455. 

The  school-commissioners  are  obliged  to  send  an  annual  report 
to  the  Superintendent  of  the  Republic.  Id.,  p.  488. 

A  similar  report  is  annually  made  to  the  same  person  on  the 
number  and  condition  of  the  poor.  Id.,  p.  G31. 

J  If  any  one  conceives  himself  to  be  wronged  by  the  school- 
commissioners  (who  are  town-officers),  he  can  appeal  to  the  super- 
intendent of  the  primary  schools,  whose  decision  is  final.  Revised 
Statutes,  vol.  i.  p.  487. 

Provisions  similar  to  those   above  cited  are  to  be  met  with  from 


85 

are  less  used  than  in  other  parts  as  a  means  of  admini- 
stration ;  and  the  right  of  prosecuting  the  offences  of 
public  officers  is  vested  in  fewer  hands*.  The  same 
tendency  is  faintly  observable  in  some  other  States  f; 
but  in  general  the  prominent  feature  of  the  administra- 
tion in  the  United  States  is  its  excessive  local  inde- 
pendence. 


OF    THE    STATE. 

I  HAVE  described  the  townships  and  the  administration ; 
it  now  remains  for  me  to  speak  of  the  State  and  the 
Government.  This  is  ground  I  may  pass  over  rapidly, 
without  fear  of  being  misunderstood;  for  all  I  have  to 
say  is  to  be  found  in  written  forms  of  the  various  con- 
stitutions, which  are  easily  to  be  procured  J.  These 
constitutions  rest  upon  a  simple  and  rational  theory; 
their  forms  have  been  adopted  by  all  constitutional 
nations,  and  are  become  familiar  to  us. 

time  to  time  in  the  laws  of  the  State  of  New  York  ;  but  in  general 
these  attempts  at  centralization  are  weak  and  unproductive.  The 
great  authorities  of  the  State  have  the  right  of  watching  and  control- 
ling the  subordinate  agents,  without  that  of  rewarding  or  punishing 
them.  The  same  individual  is  never  empowered  to  give  an  order 
and  to  punish  disobedience ;  he  has  therefore  the  right  of  command^ 
ing,  without  the  means  of  exacting  compliance.  In  1830  the  Su- 
perintendent of  Schools  complained  in  his  Annual  Report  addresesd 
to  the  legislature,  that  several  school-commissioners  had  neglected, 
notwithstanding  his  application,  to  furnish  him  with  the  accounts 
which  were  due.  He  added  that  if  this  omission  continued,  he  should 
be  obliged  to  prosecute  them,  as  the  law  directs,  before  the  proper 
tribunals. 

*  Thus  the  district-attorney  is  directed  to  recover  all  fines  below 
the  sum  of  fifty  dollars,  unless  such  a  right  has  been  specially  awarded 
to  another  magistrate.  Revised  Statutes,  vol.  i.  p.  383. 

f  Several  traces  of  centralization  may  be  discovered  in  Massa- 
chusetts ;  for  instance,  the  committees  of  the  town-schools  are  di- 
rected to  make  an  annual  report  to  the  Secretary  of  State.  See 
Laws  of  Massachusetts,  vol.  i.  p.  367. 

I  See,  at  the  end  of  the  volume,  the  text  of  the  Constitution  of 
New  York. 


86 

In  this  place,  therefore,  it  is  only  necessary  for  me  to 
give  a  short  analysis;  I  shall  endeavour  afterwards  to 
pass  judgement  upon  what  I  now  describe. 


LEGISLATIVE  POWER  OF  THE  STATE. 

Division  of  the  Legislative  Body  into  two  Houses. — Senate. — 
House  of  Representatives. — Different  functions  of  these  two 
Bodies. 

THE  legislative  power  of  the  State  is  vested  in  two 
assemblies,  the  first  of  which  generally  bears  the  name 
of  the  Senate. 

The  Senate  is  commonly  a  legislative  body;  but  it 
sometimes  becomes  an  executive  and  judicial  one.  It 
takes  a  part  in  the  government  in  several  ways,  accord- 
ing to  the  constitution  of  the  different  States*;  but  it 
is  in  the  nomination  of  public  functionaries  that  it  most 
commonly  assumes  an  executive  power.  It  partakes  of 
judicial  power  in  the  trial  of  certain  political  offences, 
and  sometimes  also  in  the  decision  of  certain  civil  casesf. 
The  number  of  its  members  is  alwrays  small.  The  other 
branch  of  the  legislature,  which  is  usually  called  the 
House  of  Representatives,  has  no  share  whatever  in  the 
administration,  and  only  takes  a  part  in  the  judicial 
power  in  as  much  as  it  impeaches  public  functionaries 
before  the  Senate. 

The  members  of  the  two  Houses  are  nearly  every- 
where subject  to  the  same  conditions  of  election.  They 
are  chosen  in  the  same  manner,  and  by  the  same  citizens. 

The  only  difference  which  exists  between  them  is, 
that  the  term  for  which  the  Senate  is  chosen  is  in  gene- 

*  In  Massachusetts  the  Senate  is  not  invested  with  any  ad- 
ministrative functions. 

f  As  in  the  State  of  New  York.  See  the  Constitution  at  the  end 
of  the  Volume. 


87 

ral  longer  than  that  of  the  House  of  Representatives. 
The  latter  seldom  remain  in  office  longer  than  a  year; 
the  former  usually  sit  two  or  three  years. 

By  granting  to  the  senators  the  privilege  of  being 
chosen  for  several  years,  and  being  renewed  seriatim, 
the  lawr  takes  care  to  preserve  in  the  legislative  body  a 
nucleus  of  men  already  accustomed  to  public  business, 
and  capable  of  exercising  a  salutary  influence  upon  the 
junior  members. 

The  Americans,  plainly,  did  not  desire,  by  this  sepa- 
ration of  the  legislative  body  into  two  branches,  to  make 
one  house  hereditary,  and  the  other  elective;  one  aristo- 
cratic, and  the  other  democratic.  It  was  not  their  ob- 
ject to  create  in  the  one  a  bulwark  to  power,  whilst  the 
other  represented  the  interests  and  passions  of  the  people. 
The  only  advantages  which  result  from  the  present  con- 
stitution of  the  United  States  are,  the  division  of  the 
legislative  powrer,  and  the  consequent  check  upon  political 
assemblies ;  with  the  creation  of  a  tribunal  of  appeal 
for  the  revision  of  the  laws. 

Time  and  experience,  however,  have  convinced  the 
Americans  that  if  these  are  its  only  advantages,  the  di- 
vision of  the  legislative  power  is  still  a  principle  of  the 
greatest  necessity.  Pennsylvania  was  the  only  one  of 
the  United  States  which  at  first  attempted  to  establish  a 
single  House  of  Assembly ;  and  Franklin  himself  was 
so  far  carried  away  by  the  necessary  consequences  of  the 
principle  of  the  sovereignty  of  the  people,  as  to  have 
concurred  in  th£  measure :  but  the  Pennsylvanians  were 
soon  obliged  to  change  the  law,  and  to  create  two 
Houses.  Thus  the  principle  of  the  division  of  the  legisla- 
tive power  was  finally  established,  and  its  necessity  may 
henceforward  be  regarded  as  a  demonstrated  truth. 

This  theory,  which  was  nearly  unknown  to  the  re- 
publics of  antiquity, — which  was  introduced  into  the 


88 


world  almost  by  accident,  like  so  many  other  great 
truths, — and  misunderstood  by  several  modern  nations, 
is  at  length  become  an  axiom  in  the  political  science  of 
the  present  age. 


THE  EXECUTIVE  POWER  OF  THE  STATE. 

Office  of  Governor  in  an  American  State. — The  place  he  occupies  in 
relation  to  the  Legislature. — His  rights  and  his  duties. — His  de- 
pendence on  the  people. 

THE  executive  power  of  the  State  may  with  truth  be  said 
to  be  represented  by  the  Governor,  although  he  enjoys 
but  a  portion  of  its  rights.  The  supreme  magistrate, 
under  the  title  of  Governor,  is  the  official  moderator  and 
counsellor  of  the  legislature.  He  is  armed  with  a  sus- 
pensive veto,  which  allows  him  to  stop,  or  at  least  to 
retard,  its  movements  at  pleasure.  He  lays  the  wants 
of  the  country  before  the  legislative  body,  and  points 
out  the  means  which  he  thinks  may  be  usefully  em- 
ployed in  providing  for  them ;  he  is  the  natural  executor 
of  its  decrees  in  all  the  undertakings  which  interest  the 
nation  at  large*.  In  the  absence  of  the  legislature,  the 
Governor  is  bound  to  take  all  necessary  steps  to  guard 
the  State  against  violent  shocks  and  unforeseen  dangers. 
The  whole  military  power  of  the  State  is  at  the  dis- 
posal of  the  Governor.  He  is  the  commander  of  the 
militia,  and  head  of  the  armed  force.  When  the 
authority  which  is  by  general  consent  awarded  to  the 
laws  is  disregarded,  the  Governor  puts  himself  at  the 
head  of  the  armed  force  of  the  State,  to  quell  resistance 
and  to  restore  order. 


*  Practically  speaking,  it  is  not  always  the  Governor  who  executes 
the  plans  of  the  legislature ;  it  often  happens  that  the  latter,  in 
voting  a  measure,  names  special  agents  to  superintend  the  execution 
of  it. 


89 

Lastly,  the  Governor  takes  no  share  in  the  admini- 
stration of  townships  and  counties,  except  it  be  in- 
directly in  the  nomination  of  Justices  of  the  Peace, 
which  nomination  he  has  not  the  power  to  revoke*. 

The  Governor  is  an  elected  magistrate,  and  is  ge- 
nerally chosen  for  one  or  two  years  only ;  so  that  he 
always  continues  to  be  strictly  dependent  upon  the 
majority  who  returned  him. 


POLITICAL  EFFECTS  OF  THE  SYSTEM  OF  LOCAL  ADMI- 
NISTRATION   IN    THE    UNITED    STATES. 

Necessary  distinction  between  the  general  centralization  of  Govern- 
ment, and  the  centralization  of  the  local  administration. — Local 
administration  not  centralized  in  the  United  States;  great  general 
centralization  of  the  Government. — Some  bad  consequences  result- 
ing to  the  United  States  from  the  local  administration. — Admini- 
strative advantages  attending  this  order  of  things. — The  power 
which  conducts  the  Government  is  less  regular,  less  enlightened, 
less  learned,  but  much  greater  than  in  Europe. —  Political  advan- 
tages of  this  order  of  things. — In  the  United  States  the  interests  of 
the  country  are  everywhere  kept  in  view. — Support  given  to  the 
Government  by  the  community. — Provincial  institutions  more 
necessary  in  proportion  as  the  social  condition  becomes  more 
democratic. — Reason  of  this. 

CENTRALIZATION  is  become  a  word  of  general  and 
daily  use,  without  any  precise  meaning  being  attached 
to  it.  Nevertheless,  there  exist  two  distinct  kinds  of 
centralization,  which  it  is  necessary  to  discriminate  with 
accuracy. 

Certain  interests  are  common  to  all  parts  of  a  nation, 
such  as  the  enactment  of  its  general  laws,  and  the 
maintenance  of  its  foreign  relations.  Other  interests 
are  peculiar  to  certain  parts  of  the  nation ;  such,  for  in- 

*  In  some  of  the  States  the  justices  of  the  peace  are  not  elected, 
by  the  Governor. 


90 

stance,  as  the  business  of  different  townships.  When 
the  power  which  directs  the  general  interests  is  centred 
in  one  place,  or  in  the  same  persons,  it  constitutes  a 
central  government.  The  power  of  directing  partial  or 
local  interests,  when  brought  together,  in  like  manner 
constitutes  what  may  be  termed  a  central  admini- 
stration. 

Upon  some  points  these  two  kinds  of  centralization 
coalesce  ;  but  by  classifying  the  objects  which  fall  more 
particularly  within  the  province  of  each  of  them,  they 
may  easily  be  distinguished. 

It  is  evident  that  a  central  government  acquires 
immense  power  when  united  to  administrative  centrali- 
zation. Thus  combined,  it  accustoms  men  to  "set  their 
own  will  habitually  and  completely  aside ;  to  submit, 
not  only  for  once  or  upon  one  point,  but  in  every  respect 
and  at  all  times.  Not  only,  therefore,  does  this  union 
of  power  subdue  them  by  force,  but  it  affects  them  in 
the  ordinary  habits  of  life,  and  influences  each  individual, 
first  separately  and  then  collectively. 

These  two  kinds  of  centralization  mutually  assist  and 
attract  each  other ;  but  they  must  not  be  supposed  to  be 
inseparable.  It  is  impossible  to  imagine  a  more  com- 
pletely central  government  than  that  which  existed  in 
France  under  Louis  XIV. ;  when  the  same  individual 
was  the  author  and  the  interpreter  of  the  laws,  and  the 
representative  of  France  at  home  and  abroad,  he  was 
justified  in  asserting  that  the  State  was  identified  with 
his  person.  Nevertheless,  the  administration  was  much 
less  centralized  under  Louis  XIV.  than  it  is  at  the 
present  day. 

In  England  the  centralization  of  the  government  is 
carried  to  great  perfection :  the  State  has  the  compact 
vigour  of  a  man,  and  by  the  sole  act  of  its  will  it  puts 
immense  engines  in  motion,  and  wields  or  collects  the 


91 

efforts  of  its  authority.  Indeed,  I  cannot  conceive  that 
a  nation  can  enjoy  a  secure  or  prosperous  existence 
without  a  powerful  centralization  of  government.  But 
I  am  of  opinion  that  a  central  administration  enervates 
the  nations  in  which  it  exists  by  incessantly  diminishing 
their  public  spirit.  If  such  an  administration  succeeds 
in  condensing  at  a  given  moment  on  a  given  point  all 
the  disposable  resources  of  a  people,  it  impairs  at  least 
the  renewal  of  those  resources.  It  may  ensure  a  victory 
in  the  hour  of  strife,  but  it  gradually  relaxes  the  sinews 
of  strength.  It  may  contribute  admirably  to  the  transient 
greatness  of  a  man,  but  it  cannot  ensure  the  durable 
prosperity  of  a  people. 

If  we  pay  proper  attention,  we  shall  find  that  when- 
ever it  is  said  that  a  State  cannot  act  because  it  has  no 
central  point,  it  is  the  centralization  of  the  government 
in  which  it  is  deficient.  It  is  frequently  asserted,  and 
we  are  prepared  to  assent  to  the  proposition,  that  the 
German  empire'  was  never  able  to  bring  all  its  powers 
into  action.  But  the  reason  was,  that  the  State  has 
never  been  able  to  enforce  obedience  to  its  general  laws, 
because  the  several  members  of  that  great  body  always 
claimed  the  right,  or  found  the  means,  of  refusing  their 
co-operation  to  the  representatives  of  the  common  au- 
thority, even  in  the  affairs  which  concerned  the  mass  of 
the  people  ;  in  other  words,  because  there  was  no  cen- 
tralization of  government.  The  same  remark  is  applicable 
to  the  Middle  Ages ;  the  cause  of  all  the  confusion  of 
feudal  society  was  that  the  control,  not  only  of  local  but  of 
general  interests,  was  divided  amongst  a  thousand  hands, 
and  broken  up  in  a  thousand  different  ways :  the  absence 
of  a  central  government  prevented  the  nations  of  Europe 
from  advancing  with  energy  in  any  straightforward  course. 

We  have  shown  that  in  the  United  States  no  central 
administration  and  no  dependent  series  of  public  func- 


92 

tionaries  exist.     Local  authority  has  been  carried    to 
lengths  which  no  European  nation  could  endure  without 
great  inconvenience,  and  which  has  even  produced  some 
disadvantageous  consequences  in  America.     But  in  the 
United  States  the  centralization  of  the  Government  is 
complete  ;  and  it  would  be  easy  to  prove  that  the  na- 
tional power  is  more  compact  than  it  has  ever  been  in 
the  old  monarchies  of  Europe.     Not  only  is  there  but 
one  legislative  body  in  each  State ;  not  only  does  there 
exist  but  one  source  of  political  authority ;  but  numerous 
district-assemblies    and  county-courts  have  in  general 
been  avoided,  lest  they  should  be  tempted  to  exceed 
their  administrative  duties  and  interfere  wTith  the  Govern- 
ment.     In  America   the   legislature   of  each  State  is 
supreme :    nothing  can  impede  its  authority ;  neither 
privileges,  nor  local  immunities,  nor  personal  influence, 
nor  even  the  empire  of  reason,  since  it  represents  that 
majority  which  claims  to  be  the  sole  organ  of  reason.  Its 
own  determination  is,  therefore,  the  only  limit  to  its  action. 
In  juxta-position  to  it,  and  under  its  immediate  control, 
is  the  representative  of  the  executive  power,  whose  duty 
it  is  to  constrain  the  refractory  to  submit  by  superior 
force.     The  only  symptom  of  weakness  lies  in  certain 
details  of  the  action  of  Government.     The  American 
republics  have  no  standing  armies  to  intimidate  a  dis- 
contented minority ;  but  as  no  minority  has  as  yet  been 
reduced  to  declare  open  war,  the  necessity  of  an  army 
has   not  been  felt.     The    State   usually  employs   the 
officers  of  the  toAvnship  or  the  county  to  deal  with  the 
citizens.  Thus,  for  instance,  in  New  England  the  assessor 
fixes  the  rate  of  taxes  ;  the  collector  receives  them ;  the 
town-treasurer  transmits  the  amount  to  the  public  trea- 
sury; and  the  disputes  which  may  arise  are  brought 
before  the  ordinary  courts  of  justice.     This  method  of 
collecting  taxes  is  slow  as  well  as  inconvenient,  and  it 


93 

would  prove  a  perpetual  hinderance  to  a  Government 
whose  pecuniary  demands  were  large.  In  general  it  is 
desirable  that  in  whatever  materially  affects  its  existence, 
the  Government  should  be  served  by  officers  of  its  own, 
appointed  by  itself,  removeable  at  pleasure,  and  accus- 
tomed to  rapid  methods  of  proceeding.  But  it  will  always 
be  easy  for  the  central  Government,  organized  as  it  is 
in  America,  to  introduce  new  and  more  efficacious  modes 
of  action  proportioned  to  its  wants. 

The  absence  of  a  central  Government  will  not,  then, 
as  has  often  been  asserted,  prove  the  destruction  of  the 
republics  of  the  New  World ;  far  from  supposing  that 
the  American  governments  are  not  sufficiently  central- 
ized, I  shall  prove  hereafter  that  they  are  too  much  so. 
The  legislative  bodies  daily  encroach  upon  the  authority 
of  the  Government,  and  their  tendericy,  like  that  of  the 
French  Convention,  is  to  appropriate  it  entirely  to 
themselves.  Under  these  circumstances  the  social 
power  is  constantly  changing  hands,  because  it  is  sub- 
ordinate to  the  power  of  the  people,  which  is  too  apt  to 
forget  the  maxims  of  wisdom  and  of  foresight  in  the 
consciousness  of  its  strength :  hence  arises  its  danger ; 
and  thus  its  vigour,  and  not  its  impotence,  will  probably 
be  the  cause  of  its  ultimate  destruction. 

The  system  of  local  administration  produces  several 
different  effects  in  America.  The  Americans  seem  to 
me  to  have  outstepped  the  limits  of  sound  policy,  in 
isolating  the  administration  of  the  Government;  for 
order,  even  in  second-rate  affairs,  is  a  matter  of  national 
importance*.  As  the  State  has  no  administrative 

*  The  authority  which  represents  the  State  ought  not,  I  think,  to 
waive  the  right  of  inspecting  the  local  administration,  even  when  it 
does  not  interfere  more  actively.  Suppose,  for  instance,  that  an 
agent  of  the  Government  was  stationed  at  some  appointed  spot  in  the 
county,  to  prosecute  the  misdemeanors  of  the  town  and  county 
.  officers,  would  not  a  more  uniform  order  be  the  result,  without  in 


94 

functionaries  of  its  own,  stationed  on  different  points  of 
its  territory,  to  whom  it  can  give  a  common  impulse, 
the  consequence  is  that  it  rarely  attempts  to  issue  any 
general  police  regulations.  The  want  of  these  regula- 
tions is  severely  felt,  and  is  frequently  observed  by  Euro- 
peans. The  appearance  of  disorder  which  prevails  on 
the  surface,  leads  him  at  first  to  imagine  that  society  is 
in  a  state  of  anarchy ;  nor  does  he  perceive  his  mistake 
till  he  has  gone  deeper  into  the  subject.  Certain  under- 
takings are  of  importance  to  the  whole  State ;  but  they 
cannot  be  put  in  execution,  because  there  is  no  national 
administration  to  direct  them.  Abandoned  to  the  ex- 
ertions of  the  towns  or  counties,  under  the  care  of 
elected  or  temporary  agents,  they  lead  to  no  result,  or 
at  least  to  no  durable  benefit. 

The  partisans  of  centralization  in  Europe  maintain 
that  the  Government  directs  the  affairs  of  each  locality 
better  than  the  citizens  could  do  it  for  themselves :  this 
may  be  true  when  the  central  power  is  enlightened,  and 
when  the  local  districts  are  ignorant;  when  it  is  as  alert  as 
they  are  slow ;  w7hen  it  is  accustomed  to  act,  and  they 
to  obey.  Indeed,  it  is  evident  that  this  double  tendency 
must  augment  with  the  increase  of  centralization,  and 
that  the  readiness  of  the  one,  and  the  incapacity  of  the 
others,  must  become  more  and  more  prominent.  But 
I  deny  that  such  is  the  case  when  the  people  is  as  en- 
lightened, as  awake  to  its  interests,  and  as  accustomed 
to  reflect  on  them,  as  the  Americans  are.  I  am  per- 
suaded, on  the  contrary,  that  in  this  case  the  collective 
strength  of  the  citizens  will  always  conduce  more  effi- 
caciously to  the  public  welfare  than  the  authority  of  the 
Government.  It  is  difficult  to  point  out  with  certainty 

any  way  compromising  the  independence  of  the  township  ?  Nothing 
of  the  kind,  however,  exists  in  America :  there  is  nothing  above  the 
county-courts,  which  have,  as  it  were,  only  an  accidental  cognizance 
of  the  offences  they  are  meant  to  repress. 


95 

the  means  of  arousing  a  sleeping  population,  and  of 
giving  it  passions  and  knowledge  which  it  does  not 
possess ;  it  is,  I  am  well  aware,  an  arduous  task  to  per- 
suade men  to  busy  themselves  about  their  own  affairs  ; 
and  it  would  frequently  be  easier  to  interest  them  in  the 
punctilios  of  court  etiquette  than  in  the  repairs  of  their 
common  dwelling.  But  whenever  a  central  administra- 
tion affects  to  supersede  the  persons  most  interested,  I 
am  inclined  to  suppose  that  it  is  either  misled,  or  de- 
sirous to  mislead.  However  enlightened  and  however 
skilful  a  central  power  may  be,  it  cannot  of  itself  embrace 
all  the  details  of  the  existence  of  a  great  nation.  Such 
vigilance  exceeds  the  powers  of  man.  And  when  it 
attempts  to  create  and  set  in  motion  so  many  com- 
plicated springs,  it  must  submit  to  a  very  imperfect 
result,  or  consume  itself  in  bootless  efforts. 

Centralization  succeeds  more  easily,  indeed,  in  sub- 
jecting the  external  actions  of  men  to  a  certain  unifor- 
mity, which  at  last  commands  our  regard,  independently 
of  the  objects  to  which,  it  is  applied,  like  those  devotees 
who  worship  the  statue,  and  forget  the  deity  it  represents. 
Centralization  imparts  without  difficulty  an  admirable 
regularity  to  the  routine  of  business ;  rules  the  details 
of  the  social  police  with  sagacity ;  represses  the  smallest 
disorder  and  the  most  petty  misdemeanors ;  maintains 
society  in  a  statu  quo  alike  secure  from  improvement 
and  decline  ;  and  perpetuates  a  drowsy  precision  in  the 
conduct  of  affairs,  which  is  hailed  by  the  heads  of  the 
administration  as  a  sign  of  perfect  order  and  public 
tranquillity*  :  in  short,  it  excels  more  in  prevention 

*  China  appears  to  me  to  present  the  most  perfect  instance  of  that 
species  of  wellbeing  which  a  completely  central  administration  may 
furnish  to  the  nations  among  which  it  exists.  Travellers  assure  us 
that  the  Chinese  have  peace  without  happiness,  industry  without 
improvement,  stability  without  strength,  and  public  order  without 
public  morality.  The  condition  of  society  is  always  tolerable,  never 


.  96 

than  in  action.  Its  force  deserts  it  when  society  is  to 
be  disturbed  or  accelerated  in  its  course ;  and  if  once 
the  co-operation  of  private  citizens  is  necessary  to  the 
furtherance  of  its  measures,  the  secret  of  its  impotence 
is  disclosed.  Even  whilst  it  invokes  their  assistance,  it 
is  on  the  condition  that  they  shall  act  exactly  as  much 
as  the  Government  chooses,  and  exactly  in  the  manner 
it  appoints.  They  are  to  take  charge  of  the  details, 
without  aspiring  to  guide  the  system  ;  they  are  to  work 
in  a  dark  and  subordinate  sphere,  and,  only  to  judge  the 
acts  in  which  they  have  themselves  co-operated,  by  their 
results.  These,  however,  are  not  conditions  on  which  the 
alliance  of  the  human  will  is  to  be  obtained;  its  carriage 
must  be  free,  and  its  actions  responsible,  or  (such  is  the 
constitution  of  man,)  the  citizen  had  rather  remain  a 
passive  spectator  than  a  dependent  actor  in  schemes 
with  which  he  is  unacquainted. 

It  is  undeniable,  that  the  wrant  of  those  uniform  re- 
gulations which  control  the  conduct  of  every  inhabitant 
of  France  is  not  unfrequently  felt  in  the  United  States. 
Gross  instances  of  social  indifference  and  neglect  are  to 
be  met  with ;  and  from  time  to  time  disgraceful  blemishes 
are  seen,  in  complete  contrast  with  the  surrounding 
civilization.  Useful  undertakings  which  cannot  succeed 
without  perpetual  attention  and  rigorous  exactitude,  are 
very  frequently  abandoned  in  the  end ;  for  in  America, 
as  well  as  in  other  countries,  the  people  is  subject  to 
sudden  impulses  and  momentary  exertions.  The  Eu- 
ropean who  is  accustomed  to  find  a  functionary  always 
at  hand  to  interfere  with  all  he  undertakes,  has  some 
difficulty  in  accustoming  himself  to  the  complex  mecha- 
nism of  the  administration  of  the  townships.  In  general 

excellent.  I  am  convinced  that,  when  China  is  opened  to  European 
observation,  ic  will  be  found  to  contain  the  most  perfect  model  of  a 
central  administration  which  exists  in  the  universe. 


97 

it  may  be  affirmed  that  the  lesser  details  of  the  police 
which  render  life  easy  and  comfortable,  are  neglected  in 
America ;  but  that  the  essential  guarantees  of  man  in 
society  are  as  strong  there  as  elsewhere.  In  America  the 
power  which  conducts  the  Government  is  far  less  re- 
gular, less  enlightened,  and  less  learned,  but  a  hundred- 
fold more  authoritative,  than  in  Europe.  In  no  country 
in  the  wrorld  do  the  citizens  make  such  exertions  for  the 
common  weal ;  and  I  am  acquainted  with  no  people 
which  has  established  schools  as  numerous  and  as  effica- 
cious, places  of  public  worship  better  suited  to  the  wants 
of  the  inhabitants,  or  roads  kept  in  better  repair.  Uni- 
formity or  permanence  of  design,  the  minute  arrangement 
of  details*,  and  the  perfection  of  an  ingenious  admini- 
stration, must  not  be  sought  for  in  the  United  States : 
but  it  will  be  easy  to  find,  on  the  other  hand,  the  sym- 


*  A  writer  of  talent,  who,  in  the  comparison  which  he  has  drawn 
between  the  finances  of  France  and  those  of  the  United  States,  has 
proved  that  ingenuity  cannot  always  supply  the  place  of  a  knowledge 
of  facts,  very  justly  reproaches  the  Americans  for  the  sort  of  confusion 
which  exists  in  the  accounts  of  the  expenditure  in  the  townships ;  and 
after  giving  the  model  of  a  Departmental  Budget  in  France,  he  adds  : 
"  We  are  indebted  to  centralization,  that  admirable  invention  of  a 
great  man,  for  the  uniform  order  and  method  which  prevails  alike  in 
all  the  municipal  budgets,  from  the  largest  town  to  the  humblest 
commune."  Whatever  may  be  my  admiration  of  this  result,  when 
1  see  the  communes  of  France,  with  their  excellent  system  of  accounts, 
plunged  in  the  grossest  ignorance  of  their  true  interests,  and  abandoned 
to  so  incorrigible  an  apathy  that  they  seem  to  vegetate  rather  than  to 
live ;  when,  on  the  other  hand,  I  observe  the  activity,  the  information, 
and  the  spirit  of  enterprise  which  keeps  society  in  perpetual  labour, 
in  those  American  townships  whose  budgets  are  drawn  up  with  small 
method  and  with  still  less  uniformity,  I  am  struck  by  the  spectacle ; 
for  to  my  mind  the  end  of  a  good  government  is  to  ensure  the  welfare 
of  a  people,  and  not  to  establish  order  and  regularity  in  the  midst  of 
its  misery  and  its  distress.  I  am  therefore  led  to  suppose  that  the 
prosperity  of  the  American  townships  and  the  apparent  confusion  of 
their  accounts,  the  distress  of  the  French  communes  and  the  perfec- 
tion of  their  Budget,  may  be  attributable  to  the  same  cause.  At  any 
rate  I  am  suspicious  of  a  benefit  which  is  united  to  so  many  evils, 
and  I  am  not  averse  to  an  evil  which  is  compensated  by  so  many 
benefits. 

VOL.  I.  F 


98 

ptoms  of  a  power,  which,  if  it  is  somewhat  barbarous,  is 
at  least  robust ;  and  of  an  existence,  which  is  checkered 
with  accidents  indeed,  but  cheered  at  the  same  time  by 
animation  and  effort. 

Granting  for  an  instant  that  the  villages  and  counties 
of  the  United  States  would  be  more  usefully  governed 
by  a  remote  authority,  which  they  had  never  seen,  than 
by  functionaries  taken  from  the  mid^t  of  them, — ad- 
mitting, for  the  sake  of  argument,  that  the  country  would 
be  more  secure,  and  the  resources  of  society  better 
employed,  if  the  whole  administration  centred  in  a  single 
arm,  still  the  political  advantages  which  the  Americans 
derive  from  their  system  would  induce  me  to  prefer  it  to 
the  contrary  plan.  It  profits  me  but  little,  after  all,  that  a 
vigilant  authority  should  protect  the  tranquillity  of  my 
pleasures,  and  constantly  avert  all  dangers  from  my  path, 
without  my  care  or  my  concern,  if  this  same  authority 
is  the  absolute  mistress  of  my  liberty  and  of  my  life, 
and  if  it  so  monopolizes  all  the  energy  of  existence,  that 
when  it  languishes  everything  languishes  around  it,  that 
when  it  sleeps  everything  must  sleep,  that  when  it  dies 
the  State  itself  must  perish. 

In  certain  countries  of  Europe  the  natives  consider 
themselves  as  a  kind  of  settlers,  indifferent  to  the  fate 
of  the  spot  upon  which  they  live.  The  greatest  changes 
are  effected  without  their  concurrence,  and  (unless  chance 
may  have  apprised  them  of  the  event,)  without  their 
knowledge  ;  nay  more,  the  citizen  is  unconcerned  as  to 
the  condition  of  his  village,  the  police  of  his  street,  the 
repairs  of  the  church  or  of  the  parsonage ;  for  he  looks 
upon  all  these  things  as  unconnected  with  himself,  and 
as  the  property  of  a  powerful  stranger  whom  he  calls 
the  Government.  He  has  only  a  life-interest  in  these 
possessions,  and  he  entertains  no  notions  of  ownership 
or  of  improvement.  This  want  of  interest  in  his  own 


99 

affairs  goes  so  far,  that  if  his  own  safety  or  that  of  his 
children  is  endangered,  instead  of  trying  to  avert  the 
peril,  he  will  fold  his  arms,  and  wait  till  the  nation 
comes  to  his  assistance.  This  same  individual  who  has 
so  completely  sacrificed  his  own  free  will,  has  no  natural 
propensity  to  obedience ;  he  cowers,  it  is  true,  before  the 
pettiest  officer ;  but  he  braves  the  law  with  the  spirit  of 
a  conquered  foe,  as  soon  as  its  superior  force  is  removed : 
his  oscillations  between  servitude  and  licence  are  per- 
petual. When  a  nation  has  arrived  at  this  state,  it  must 
either  change  its  customs  and  its  laws,  or  perish :  the 
source  of  public  virtue  is  dry ;  and  though  it  may  contain 
subjects,  the  race  of  citizens  is  extinct.  Such  commu- 
nities are  a  natural  prey  to  foreign  conquest ;  and  if  they 
do  not  disappear  from  the  scene  of  life,  it  is  because 
they  are  surrounded  by  other  nations  similar  or  inferior 
to  themselves :  it  is  because  the  instinctive  feeling  of 
their  country's  claims  still  exists  in  their  hearts ;  and 
because  an  involuntary  pride  in  the  name  it  bears,  or  a 
vague  reminiscence  of  its  bygone  fame,  suffices  to  give 
them  the  impulse  of  self-preservation. 

Nor  can  the  prodigious  exertions  made  by  certain 
peoples  in  the  defence  of  a  country  in  which  they  may 
almost  be  said  to  have  lived  as  aliens,  be  adduced  in 
favour  of  such  a  system ;  for  it  will  be  found  that  in  these 
cases  their  main  incitement  was  religion.  The  per- 
manence, the  glory,  or  the  prosperity  of  the  nation  were 
become  parts  of  their  faith  ;  and  in  defending  the  country 
they  inhabited,  they  defended  that  Holy  City  of  which 
they  were  all  citizens.  The  Turkish  tribes  have  never 
taken  an  active  share  in  the  conduct  of  the  affairs  of  so- 
ciety, but  they  accomplished  stupendous  enterprises  as 
long  as  the  victories  of  the  Sultans  were  the  triumphs 
of  the  Mahommedan  faith.  In  the  present  age  they  are 
in  rapid  decay,  because  their  religion  is  departing,  and 

F  2 


100 

despotism  only  remains.  Montesquieu,  who  attributed 
to  absolute  power  an  authority  peculiar  to  itself,  did  it, 
as  I  conceive,  undeserved  honour ;  for  despotism,  taken 
by  itself,  can  produce  no  durable  results.  On  close 
inspection  \ve  shall  find  that  religion,  and  not  fear,  has 
v,ever  been  the  cause  of  the  long-lived  prosperity  of  ab- 
"*y\  solute  governments.  Whatever  exertions  may  be  made, 
no  true  power  can  be  founded  among  men  which  does 
not  depend  upon  the  free  union  of  their  inclinations  ; 
andhpatriotism  or  religion  are  the  only  two  motives  in 
the  world  which  can  permanently  direct  the  whole  of  a 
body  politic  to  one  end. 

Laws  cannot  succeed  in  rekindling  the  ardour  of  an 
extinguished  faith ;  but  men  may  be  interested  in  the 
fate  of  their  country  by  the  laws.  By  this  influence,  the 
vague  impulse  of  patriotism,  which  never  abandons  the 
human  heart,  may  be  directed  and  revived ;  and  if  it  be 
connected  with  the  thoughts,  the  passions,  and  the  daily 
habits  of  life,  it  may  be  consolidated  into  a  durable  and 
rational  sentiment.  Let  it  not  be  said  that  the  time 
for  the  experiment  is  already  past ;  for  the  old  age  of 
nations  is  not  like  the  old  age  of  men,  and  every  fresh 
generation  is  a  new  people  ready  for  the  care  of  the 
legislator. 

It  is  not  the  administrative,  but  the  political  eifects 
of  the  local  system  that  I  most  admire  in  America.  In 
the  United  States  the  interests  of  the  country  are  every- 
where kept  in  view ;  they  are  an  object  of  solicitude  to 
the  people  of  the  whole  Union,  and  every  citizen  is  as 
warmly  attached  to  them  as  if  they  were  his  own.  He 
takes  pride  in  the  glory  of  his  nation  ;  he  boasts  of  its 
success,  to  which  he  conceives  himself  to  have  contri- 
buted; and  he  rejoices  in  the  general  prosperity  by 
which  he  profits.  The  feeling  he  entertains  towards 
the  State  is  analogous  to  that  which  unites  him  to  his 


101 

family,  and  it  is  by  a  kind  of  egotism  that  he  interests 
himself  in  the  welfare  of  his  country. 

The  European  generally  submits  to  a  public  officer 
because  he  represents  a  superior  force  ;  but  to  an  Ame- 
rican he  represents  a  right.  In  America  it  may  be  said 
that  no  one  renders  obedience  to  man,  but  to  justice 
and  to  law.  If  the  opinion  which  the  citizen  entertains 
of  himself  is  exaggerated,  it  is  at  least  salutary ;  he  un- 
hesitatingly confides  in  his  own  powers,  which  appear 
to  him  to  be  all-sufficient.  When  a  private  individual 
meditates  an  undertaking,  however  directly  connected  it 
may  be  with  the  welfare  of  society,  he  never  thinks  of 
soliciting  the  cooperation  of  the  Government ;  but  he 
publishes  his  plan,  offers  to  execute  it  himself,  courts 
the  assistance  of  other  individuals,  and  struggles  man- 
fully against  all  obstacles.  Undoubtedly  he  is  often  less 
successful  than  the  State  might  have  been  in  his  posi- 
tion ;  but  in  the  end,  the  sum  of  these  private  undertak- 
ings far  exceeds  all  that  the  Government  could  effect. 

As  the  administrative  authority  is  within  the  reach  of 
the  citizens,  whom  it  in  some  degree  represents,  it  ex- 
cites neither  their  jealousy  nor  their  hatred :  as  its  re- 
sources are  limited,  every  one  feels  that  he  must  not 
rely  solely  on  its  assistance.  Thus  when  the  admini- 
stration thinks  fit  to  interfere,  it  is  not  abandoned  to  it- 
self as  in  Europe ;  the  duties  of  the  private  citizens  are 
not  supposed  to  have  lapsed  because  the  State  assists 
in  their  fulfilment ;  but  every  one  is  ready,  on  the  con- 
trary, to  guide  and  to  support  it.  This  action  of  indi- 
vidual exertions,  joined  to  that  of  the  public  authorities, 
frequently  performs  what  the  most  energetic  central  ad- 
ministration would  be  unable  to  execute.  It  would  be 
easy  to  adduce  several  facts  in  proof  of  what  I  advance, 
but  I  had  rather  give  only  one,  with  which  I  am  more 


102 

thoroughly  acquainted*.  In  America,  the  means  which 
the  authorities  have  at  their  disposal  for  the  discovery 
of  crimes  and  the  arrestation  of  criminals  are  few.  A 
State-police  does  not  exist,  and  passports  are  unknown. 
The  criminal  police  of  the  United  States  cannot  be  com- 
pared to  that  of  France ;  the  magistrates  and  the  public 
prosecutors  are  Ihot  numerous,  and  the  examinations  of 
prisoners  are  rapid  and  oral.  Nevertheless  in  no  country 
does  crime  more  rarely  elude  punishment.  The  reason 
is,  that  every  one  conceives  himself  to  be  interested  in 
furnishing  evidence  of  the  act  committed,  and  in  stop- 
ping the  delinquent.  During  my  stay  in  the  United 
States,  I  witnessed  the  spontaneous  formation  of  com- 
mittees for  the  pursuit  and  prosecution  of  a  man  who 
had  committed  a  great  crime  in  a  certain  county.  In 
Europe  a  criminal  is  an  unhappy  being  who  is  strug- 
gling for  his  life  against  the  ministers  of  justice,  whilst 
the  population  is  merely  a,  spectator  of  the  conflict :  in 
America  he  is  looked  upon  as  an  enemy  of  the  human 
race,  and  the  whole  of  mankind  is  against  him. 

I  believe  that  provincial  institutions  are  useful  to  all 
nations,  but  nowhere  do  they  appear  to  me  to  be  more 
indispensable  than  amongst  a  democratic  people.  In  an 
aristocracy,  order  can  always  be  maintained  in  the  midst 
of  liberty ;  and  as  the  rulers  have  a  great  deal  to  lose, 
order  is  to  them  a  first-rate  consideration.  In  like  man- 
ner an  aristocracy  protects  the  people  from  the  excesses 
of  despotism,  because  it  always  possesses  an  organized 
power  ready  to  resist  a  despot.  But  a  democracy  with- 
out provincial  institutions  has  no  security  against  these 
evils.  How  can  a  populace,  unaccustomed  to  freedom 
in  small  concerns,  learn  to  use  it  temperately  in  great 
affairs  ?  What  resistance  can  be  offered  to  tyranny  in 
*  See  Appendix,  I. 


103 

a  country  where  every  private  individual  is  impotent, 
and  where  the  citizens  are  united  by  no  common  tie  ? 
Those  who  dread  the  licence  of  the  mob,  and  those  who 
fear  the  rule  of  absolute  power,  ought  alike  to  desire 
the  progressive  growth  of  provincial  liberties. 

On  the  other  hand,  I  am  convinced  that  democratic 
nations  are  most  exposed  to  fall  beneath  the  yoke  of 
a  central  administration,  for  several  reasons,  amongst 
which  is  the  following. 

The  constant  tendency  of  these  nations  is  to  concen- 
trate all  the  strength  of  the  government  in  the  hands  of 
the  only  power  which  directly  represents  the  people ; 
because,  beyond  the  people,  nothing  is  to  be  perceived 
but  a  mass  of  equal  individuals  confounded  together. 
But  when  the  same  power  is  already  in  possession  of 
all  the  attributes  of  the  Government,  it  can  scarcely  re- 
frain from  penetrating  into  the  details  of  the  admini- 
stration ;  and  an  opportunity,  of  doing  so  is  sure  to  pre- 
sent itself  in  the  end,  as  was  the  case  in  France.  In 
the  French  Revolution  there  were  two  impulses  in  op- 
posite directions,  which  must  never  be  confounded  ;  the 
one  was  favourable  to  liberty,  the  other  to  despotism. 
Under  the  ancient  monarchy  the  King  was  the  sole 
author  of  the  laws ;  and  below  the  power  of  the  Sove- 
reign, certain  vestiges  of  provincial  institutions,  half- 
destroyed,  were  still  distinguishable.  These  provincial 
institutions  were  incoherent,  ill  compacted,  and  fre- 
quently absurd ;  in  the  hands  of  the  aristocracy  they 
had  sometimes  been  converted  into  instruments  of  op- 
pression. The  Revolution  declared  itself  the  enemy  of 
royalty  and  of  provincial  institutions  at  the  same  time  ; 
it  confoimded  all  that  had  preceded  it — despotic  power 
and  the  checks  to  its  abuses — in  indiscriminate  hatred ; 
and  its  tendency  was  at  once  to  republicanism  and  to 
centralization.  This  double  character  of  the  French 


104 

Revolution  is  a  fact  which  has  been  adroitly  handled  by 
the  friends  of  absolute  power.  Can  they  be  accused  of 
labouring  in  the  cause  of  despotism,  when  they  are  de- 
fending that  central  administration  which  was  one  of 
the  great  innovations  of  the  Revolution  *  ?  In  this 
manner  popularity  may  be  conciliated  with  hostility  to 
the  rights  of  the  people,  and  the  secret  slave  of  tyranny 
may  be  the  professed  admirer  of  freedom. 

I  have  visited  the  two  nations  in  which  the  system  of 
provincial  liberty  has  been  most  perfectly  established, 
and  I  have  listened  to  the  opinions  of  different  parties 
in  those  countries.  In  America  I  met  with  men  who 
secretly  aspired  to  destroy  the  democratic  institutions 
of  the  Union ;  in  England  I  found  others  who  attacked 
the  aristocracy  openly  ;  but  I  know  of  no  one  who  does 
not  regard  provincial  independence  as  a  great  benefit. 
In  both  countries  I  have  heard  a  thousand  different 
causes  assigned  for  the  evils  of  the  State ;  but  the  local 
system  was  never  mentioned  amongst  them.  I  have 
heard  citizens  attribute  the  power  and  prosperity  of 
then'  country  to  a  multitude  of  reasons ;  but  they  all 
placed  the  advantages  of  local  institutions  in  the  fore- 
most rank. 

Am  I  to  suppose  that  when  men  who  are  naturally  so 
divided  on  religious  opinions,  and  on  political  theories, 
agree  on  one  point,  (and  that,  one  of  which  they  have 
daily  experience,)  they  are  all  in  error  ?  The  only  na- 
tions which  deny  the  utility  of  provincial  liberties  are 
those  which  have  fewest  of  them  ;  in  other  words,  those 
who  are  unacquainted  with  the  institution  are  the  only 
persons  who  pass  a  censure  upon  it. 

*  See  Appendix,  K. 


105 


CHAPTER  VI. 

JUDICIAL  POWER    IN    THE    UNITED    STATES,    AND    ITS  • 
INFLUENCE  ON  POLITICAL  SOCIETY. 

The  Anglo-Americans  have  retained  the  characteristics  of  judicial 
power  which  are  common  to  all  nations. — They  have,  however, 
made  it  a  powerful  political  organ. — How. — In  what  the  judicial 
system  of  the  Anglo-Americans  differs  from  that  of  all  other  na- 
tions.— Why  the  American  judges  have  the  right  of  declaring  the 
laws  to  be  unconstitutional. — How  they  use  this  right. — Pre- 
cautions taken  by  the  legislator  to  prevent  its  abuse. 

I  HAVE  thought  it  essential  to  devote  a  separate  chap- 
ter to  the  judicial  authorities  of  the  United  States,,  lest 
their  great  political  importance  should  be  lessened  in 
the  reader's  eyes  by  a  merely  incidental  mention  of 
them.  Confederations  have  existed  in  other  countries 
beside  America ;  and  republics  have  not  been  esta- 
blished upon  the  shores  of  the  New  World  alone  :  the 
representative  system  of  government  has  been  adopted 
in  several  States  of  Europe ;  but  I  am  not  aware  that 
any  nation  of  the  globe  has  hitherto  organized  a  judicial 
power  on  the  principle  adopted  by  the  Americans.  The 
judicial  organization  of  the  United  States  is  the  institu- 
tion which  a  stranger  has  the  greatest  difficulty  in  un- 
derstanding. He  hears  the  authority  of  a  judge  invoked 
in  the  political  occurrences  of  every  day,  and  he  natu- 
rally concludes  that  in  the  United  States  the  judges  are 
important  political  functionaries  ;  nevertheless,  when  he 
examines  the  nature  of  the  tribunals,  they  offer  nothing 
which  is  contrary  to  the  usual  habits  and  privileges  of 
those  bodies ;  and  the  magistrates  seem  to  him  to  in- 
terfere in  public  affairs  by  chance,  but  by  a  chance 
which  recurs  every  day. 

When  the  Parliament  of  Paris  remonstrated,  or  re- 
F  5 


106 

fused  to  enregister  an  edict,  or  when  it  summoned  a 
functionaiy  accused  of  malversation  to  its  bar,  its  politi- 
cal influence  as  a  judicial  body  was  clearly  visible ;  but 
nothing  of  the  kind  is  to  be  seen  in  the  United  States. 
The  Americans  have  retained  all  the  ordinary  character- 
istics of  judicial  authority,  and  have  carefully  restricted 
its  action  to  the  ordinary  circle  of  its  functions. 

The  first  characteristic  of  judicial  power  in  all  nations 
is  the  duty  of  arbitration.  But  rights  must  be  contested 
in  order  to  warrant  the  interference  of  a  tribunal ;  and 
an  action  must  be  brought  to  obtain  the  decision  of  a 
judge.  As  long,  therefore,  as  a  law  is  uncontested,  the 
judicial  authority  is  not  called  upon  to  discuss  it,  and  it 
may  exist  without  being  perceived.  When  a  judge  in  a 
given  case  attacks  a  law  relating  to  that  case,  he  extends 
the  circle  of  his  customary  duties,  without  however  step- 
ping beyond  it ;  since  he  is  in  some  measure  obliged  to 
decide  upon  the  law,  in  order  to  decide  the  case.  But  if 
he  pronounces  upon  a  law  without  resting  upon  a  case, 
he  clearly  steps  beyond  his  sphere,  and  invades  that  of 
the  legislative  authority. 

The  second  characteristic  of  judicial  power  is  that  it 
pronounces  on  special  cases,  and  not  upon  general  prin- 
ciples. If  a  judge  in  deciding  a  particular  point  destroys 
a  general  principle,  by  passing  a  judgement  which  tends 
to  reject  all  the  inferences  from  that  principle,  and  con- 
sequently to  annul  it,  he  remains  within  the  ordinary 
limits  of  his  functions.  But  if  he  directly  attacks  a  ge- 
neral principle  without  having  a  particular  case  in  view, 
he  leaves  the  circle  in  which  all  nations  have  agreed  to 
confine  his  authority ;  he  assumes  a  more  important,  and 
perhaps  a  more  useful  influence  than  that  of  the  magi- 
strate, but  he  ceases  to  represent  the  judicial  power. 

The  third  characteristic  of  the  judicial  power  is  its  in- 
ability to  act  unless  it  is  appealed  to,  or  until  it  has  taken 


107 

cognizance  of  an  affair.  This  characteristic  is  less  ge- 
neral than  the  other  two ;  but  notwithstanding  the  ex- 
ceptions, I  think  it  may  be  regarded  as  essential.  The 
judicial  power  is  by  its  nature  devoid  of  action  ;  it  must 
be  put  in  motion  in  order  to  produce  a  result.  When  it 
is  called  upon  to  repress  a  crime,  it  punishes  the  crimi- 
nal ;  when  a  wrong  is  to  be  redressed,  it  is  ready  to  re- 
dress it ;  when  an  act  requires  interpretation,  it  is  pre- 
pared to  interpret  it ;  but  it  does  not  pursue  criminals, 
hunt  out  wrongs,  or  examine  into  evidence  of  its  own 
accord.  A  judicial  functionary  who  should  open  proceed- 
ings, and  usurp  the  censorship  of  the  laws,  would  in 
some  measure  do  violence  to  the  passive  nature  of  his 
authority. 

The  Americans  have  retained  these  three  distinguish- 
ing characteristics  of  the  judicial  powrer ;  an  American 
judge  can  only  pronounce  a  decision  when  litigation  has 
arisen,  he  is  only  conversant  with  special  cases,  and  he 
cannot  act  until  the  cause  has  been  duly  brought  before 
the  court.  His  position  is  therefore  perfectly  similar  to 
that  of  the  magistrate  of  other  nations ;  and  he  is  never- 
theless invested  with  immense  political  power.  If  the 
sphere  of  his  authority  and  his  means  of  action  are  the 
same  as  those  of  other  judges,  it  may  be  asked  whence 
he  derives  a  power  wThich  they  do  not  possess.  The 
cause  of  this  difference  lies  in  the  simple  fact  that  the 
Americans  have  acknowledged  the  right  of  the  judges  to 
found  their  decisions  on  the  Constitution,  rather  than 
on  the  laws.  In  other  words,  they  have  left  them  at 
liberty  not  to  apply  such  laws  as  may  appear  to  them  to 
be  unconstitutional. 

I  am  aware  that  a  similar  right  has  been  claimed — but 
claimed  in  vain — by  courts  of  justice  in  other  countries  ; 
but  in  America  it  is  recognised  by  all  the  authorities ; 
and  not  a  party,  nor  so  much  as  an  individual,  is  found 


108 

to  contest  it.  This  fact  can  only  be  explained  by  the  prin- 
ciples of  the  American  constitutions-.  In  France  the  con- 
stitution is  (or  at  least  is  supposed  to  be)  immutable ;  and 
the  received  theory  is,  that  no  power  has  the  right  of 
changing  any  part  of  it.  In  England,  the  Parliament 
has  an  acknowledged  right  to  modify  the  constitution : 
as,  therefore,  the  constitution  may  undergo  perpetual 
changes,  it  does  not  in  reality  exist ;  the  Parliament  is 
at  once  a  legislative  and  a  constituent  assembly.  The 
political  theories  of  America  are  more  simple  and  more 
rational.  An  American  constitution  is  not  supposed  to 
be  immutable  as  in  France  ;  nor  is  it  susceptible  of  modi- 
fication by  the  ordinary  powers  of  society  as  in  England. 
It  constitutes  a  detached  whole,  which,  as  it  represents 
the  determination  of  the  whole  people,  is  no  less  binding 
on  the  legislator  than  on  the  private  citizen,  but  which 
may  be  altered  by  the  will  of  the  people  in  predetermined 
cases,  according  to  established  rules.  In  America  the 
constitution  may  therefore  vary,  but  as  long  as  it  exists 
it  is  the  origin  of  all  authority,  and  the  sole  vehicle  of 
the  predominating  force. 

It  is  easy  to  perceive  in  what  manner  these  differences 
must  act  upon  the  position  and  the  rights  of  the  judicial 
bodies  in  the  three  countries  I  have  cited.  If  in  France 
the  tribunals  were  authorized  to  disobey  the  laws  on  the 
ground  of  their  being  opposed  to  the  constitution,  the 
supreme  power  would  in  fact  be  placed  in  their  hands, 
since  they  alone  would  have  the  right  of  interpreting  a 
constitution,  the  clauses  of  which  can  be  modified  by  no 
authority.  They  w^ould  therefore  take  the  place  of  the 
nation,  and  exercise  as  absolute  a  sway  over  society  as 
the  inherent  weakness  of  judicial  power  would  allow 
them  to  do.  Undoubtedly,  as  the  French  judges  are  in- 
competent to  declare  a  law  to  be  unconstitutional,  the 
power  of  changing  the  constitution  is  indirectly  given  to 


109 

the  legislative  body,  since  no  legal  barrier  would  oppose 
the  alterations  which  it  might  prescribe.  But  it  is  better 
to  grant  the  power  of  changing  the  constitution  of  the 
people  to  men  who  represent  (however  imperfectly)  the 
will  of  the  people,  than  to  men  who  represent  no  one 
but  themselves. 

It  would  be  still  more  unreasonable  to  invest  the  En- 
glish judges  with  the  right  of  resisting  the  decisions  of 
the  legislative  body,  since  the  Parliament  which  makes 
the  laws  also  makes  the  Constitution  ;  and  consequently 
a  law  emanating  from  the  three  powers  of  the  State  can 
in  no  case  be  unconstitutional.  But  neither  of  these  re- 
marks is  applicable  to  America. 

In  the  United  States  the  constitution  governs  the  le- 
gislator as  much  as  the  private  citizen :  as  it  is  the  first 
of  laws,  it  cannot  be  modified  by  a  law ;  and  it  is  there- 
fore just  that  the  tribunals  should  obey  the  constitution 
in  preference  to  any  law.  This  condition  is  essential  to 
the  power  of  the  judicature :  for  to  select  that  legal  obli- 
gation by  which  he  is  most  strictly  bound,  is  the  natural 
right  of  every  magistrate. 

In  France  the  Constitution  is  also  the  first  of  laws, 
and  the  judges  have  the  same  right  to  take  it  as  the 
ground  of  their  decisions  ;  but  were  they  to  exercise  this 
right,  they  must  perforce  encroach  on  rights  more  sacred 
than  their  own,  namely,  on  those  of  society,  in  whose 
name  they  are  acting.  In  this  case  the  State-motive 
clearly  prevails  over  the  motives  of  an  individual.  In 
America,  where  the  nation  can  always  reduce  its  magi- 
strates to  obedience  by  changing  its  Constitution,  no  dan- 
ger of  this  kind  is  to  be  feared.  Upon  this  point,  there- 
fore, the  political  and  the  logical  reason  agree,  and  the 
people  as  well  as  the  judges  preserve  their  privileges. 

Whenever  a  law  which  the  judge  holds  to  be  uncon- 
stitutional is  argued  in  a  tribunal  of  the  United  States, 


110 

he  may  refuse  to  admit  it  as  a  rule ;  this  power  is  the 
only  one  which  is  peculiar  to  the  American  magistrate, 
but  it  gives  rise  to  immense  political  influence.  Few 
laws  can  escape  the  searching  analysis  of  the  judicial 
power  for  any  length  of  time  ;  for  there  are  few  which 
are  not  prejudicial  to  some  private  interest  or  other,  and 
none  which  may  not  be  brought  before  a  court  of  justice 
by  the  choice  of  parties,  or  by  the  necessity  of  the  case. 
But  from  the  time  that  a  judge  has  refused  to  apply  any 
given  law  in  a  case,  that  law  loses  a  portion  of  its  moral 
sanction.  The  persons  to  whose  interests  it  is  preju- 
dicial, learn  that  means  exist  of  evading  its  authority ; 
and  similar  suits  are  multiplied,  until  it  becomes  power- 
less. One  of  two  alternatives  must  then  be  resorted  to  : 
the  people  must  alter  the  constitution,  or  the  legislature 
must  repeal  the  law. 

The  political  power  which  the  Americans  have  in- 
trusted to  their  courts  of  justice  is  therefore  immense  ; 
but  the  evils  of  this  power  are  considerably  diminished, 
by  the  obligation  which  has  been  imposed  of  attacking 
the  laws  through  the  courts  of  justice  alone.  If  the 
judge  had  been  empowered  to  contest  the  laws  on  the 
ground  of  theoretical  generalities ;  if  he  had  been  enabled 
to  open  an  attack  or  to  pass  a  censure  on  the  legislator, 
he  would  have  played  a  prominent  part  in  the  political 
sphere ;  and  as  the  champion  or  the  antagonist  of  a  party, 
he  would  have  arrayed  the  hostile  passions  of  the  nation 
in  the  conflict.  But  when  a  judge  contests  a  law,  applied 
to  some  particular  case  in  an  obscure  proceeding,  the  im- 
portance of  his  attack  is  concealed  from  the  public  gaze ; 
his  decision  bears  upon  the  interest  of  an  individual,  and 
if  the  law  is  slighted,  it  is  only  collaterally.  Moreover, 
although  it  be  censured,  it  is  not  abolished ;  its  moral 
force  may  be  diminished,  but  its  cogency  is  by  no  means 
suspended ;  and  its  final  destruction  can  only  be  accom- 


Ill 

plished  by  the  reiterated  attacks  of  judicial  functionaries. 
It  will  readily  be  understood  that  by  connecting  the  cen- 
sorship of  the  laws  with  the  private  interests  of  mem- 
bers of  the  community,  and  by  intimately  uniting  the 
prosecution  of  the  law  with  the  prosecution  of  an  indi- 
vidual, the  legislation  is  protected  from  wanton  assailants, 
and  from  the  daily  aggressions  of  party-spirit.  The  errors 
of  the  legislator  are  exposed  whenever  then*  evil  conse- 
quences are  most  felt ;  and  it  is  always  a  positive  and 
appreciable  fact  which  serves  as  the  basis  of  a  prose- 
cution. 

I  am  inclined  to  believe  this  practice  of  the  American 
courts  to  be  at  once  the  most  favourable  to  liberty  as  well 
as  to  public  order.  If  the  judge  could  only  attack  the 
legislator  openly  and  directly,  he  would  sometimes  be 
afraid  to  oppose  any  resistance  to  his  will ;  and  at  other 
moments  party-spirit  might  encourage  him  to  brave  it 
every  day.  The  laws  would  consequently  be  attacked 
when  the  power  from  which  they  emanate  is  weak,  and 
obeyed  when  it  is  strong.  That  is  to  say,  when  it  would 
be  useful  to  respect  them,  they  would  be  contested ;  and 
when  it  would  be  easy  to  convert  them  into  an  instru- 
ment of  oppression,  they  would  be  respected.  But  the 
American  judge  is  brought  into  the  political  arena  inde- 
pendently of  his  own  will.  He  only  judges  the  law  be- 
cause he  is  obliged  to  judge  a  case.  The  political  ques- 
tion which  he  is  called  upon  to  resolve  is  connected  with 
the  interest  of  the  parties,  and  he  cannot  refuse  to  decide 
it  without  abdicating  the  duties  of  his  post.  He  per- 
forms his  functions  as  a  citizen  by  fulfilling  the  strict 
duties  which  belong  to  his  profession  as  a  magistrate. 
It  is  true  that  upon  this  system  the  judicial  censorship 
which  is  exercised  by  the  courts  of  justice  over  the  legis- 
lation cannot  extend  to  all  laws  indistinctly,  in  as  much  as 
some  of  them  can  never  give  rise  to  that  precise  species 


112 

of  contestation  which  is  termed  a  lawsuit ;  and  even 
when  such  a  contestation  is  possible,  it  may  happen 
that  no  one  cares  to  bring  it  before  a  court  of  justice. 
The  Americans  have  often  felt  this  disadvantage,  but 
they  have  left  the  remedy  incomplete,  lest  they  should 
give  it  an  efficacy  which  might  in  some  cases  prove  dan- 
gerous. Within  these  limits,  the  power  vested  in  the 
American  courts  of  justice  of  pronouncing  a  statute 
to  be  unconstitutional,  forms  one  of  the  most  powerful 
barriers  which  has  ever  been  devised  against  the  tyranny 
of  political  assemblies. 


OTHER  POWERS  GRANTED  TO  THE  AMERICAN  JUDGES. 

In  the  United  States  all  the  citizens  have  the  right  of  indicting  the 
public  functionaries  before  the  ordinary  tribunals. — How  they  use 
this  right. — Art.  75.  of  the  French  Constitution  of  the  An  VIII. — 
The  Americans  and  the  English  cannot  understand  the  purport  of 
this  clause. 

IT  is  perfectly  natural  that  in  a  free  country  like  America 
all  the  citizens  should  have  the  right  of  indicting  public 
functionaries  before  the  ordinary  tribunals,  and  that  all 
the  judges  should  have  the  power  of  punishing  public 
offences.  The  right  granted  to  the  courts  of  justice  of 
judging  the  agents  of  the  executive  government,  when 
they  have  violated  the  laws,  is  so  natural  a  one  that  it 
cannot  be  looked  upon  as  an  extraordinary  privilege. 
Nor  do  the  springs  of  government  appear  to  me  to  be 
weakened  in  the  United  States  by  the  custom  which  ren- 
ders all  public  officers  responsible  to  the  judges  of  the 
land.  The  Americans  seem,  on  the  contrary,  to  have 
increased  by  this  means  that  respect  which  is  due  to  the 
authorities,  and  at  the  same  time  to  have  rendered  those 
who  are  in  power  more  scrupulous  of  offending  public 
opinion.  I  was  struck  by  the  small  number  of  political 


113 

trials  which  occur  in  the  United  States ;  but  I  have  no 
difficulty  in  accounting  for  this  circumstance.  A  law- 
suit, of  whatever  nature  it  may  be,  is  always  a  difficult 
and  expensive  undertaking.  It  is  easy  to  attack  a  public 
man  in  a  journal,  but  the  motives  which  can  warrant  an 
action  at  law  must  be  serious.  A  solid  ground  of  com- 
plaint must  therefore  exist,  to  induce  an  individual  to 
prosecute  a  public  officer,  and  public  officers  are  careful 
not  to  furnish  these  grounds  of  complaint,  when  they 
are  afraid  of  being  prosecuted. 

This  does  not  depend  upon  the  republican  form  of 
the  American  institutions,  for  the  same  facts  present 
themselves  in  England.  These  two  nations  do  not  re- 
gard the  impeachment  of  the  principal  officers  of  State 
as  a  sufficient  guarantee  of  their  independence.  But 
they  hold  that  the  right  of  minor  prosecutions,  which 
are  within  the  reach  of  the  whole  community,  is  a  better 
pledge  of  freedom  than  those  great  judicial  actions  which 
are  rarely  employed  until  it  is  too  late. 

In  the  Middle  Ages,  when  it  was  very  difficult  to 
overtake  offenders,  the  judges  inflicted  the  most  dreadful 
tortures  on  the  few  who  were  arrested,  which  by  no 
means  diminished  the  number  of  crimes.  It  has  since 
been  discovered  that  when  justice  is  more  certain  and 
more  mild,  it  is  at  the  same  time  more  efficacious.  The 
English  and  the  Americans  hold  that  tyranny  and  op- 
pression are  to  be  treated  like  any  other  crime,  by  less- 
ening the  penalty  and  facilitating  conviction. 

In  the  year  VIII.  of  the  French  Republic,  a  constitu- 
tion was  drawn  up  in  which  the  following  clause  wras 
introduced :  "  Art.  75.  All  the  agents  of  the  Government 
below  the  rank  of  ministers  can  only  be  prosecuted  for 
offences  relating  to  their  several  functions  by  virtue  of  a 
decree  of  the  Conseil  d'Etat ;  in  which  case  the  prose- 
cution takes  place  before  the  ordinary  tribunals/3  This 


114 

clause  survived  the  "  Constitution  del5  An  VIII.,"  and  it 
is  still  maintained  in  spite  of  the  just  complaints  of  the 
nation.  I  have  always  the  utmost  difficulty  in  explaining 
its  meaning  to  Englishmen  or  Americans.  They  were 
at  once  led  to  conclude  that  the  Conseil  d'Etat  in  France 
was  a  great  tribunal,  established  in  the  centre  of  the 
kingdom,  which  exercised  a  preliminary  and  somewhat 
tyrannical  jurisdiction  in  all  political  causes.  But  when 
I  told  them  that  the  Conseil  d'Etat  was  not  a  judicial 
body,  in  the  common  sense  of  the  term,  but  an  admini- 
strative council  composed  of  men  dependent  on  the 
Crown, — so  that  the  King,  after  having  ordered  one  of 
his  servants,  called  a  Prefect,  to  commit  an  injustice,  has 
the  power  of  commanding  another  of  his  servants,  called 
a  Councillor  of  State,  to  prevent  the  former  from  being 
punished, — when  I  demonstrated  to  them  that  the  citizen 
who  has  been  injured  by  the  order  of  the  sovereign  is 
obliged  to  solicit  from  the  sovereign  permission  to  obtain 
redress,  they  refused  to  credit  so  flagrant  an  abuse,  and 
were  tempted  to  accuse  me  of  falsehood  or  of  ignorance. 
It  frequently  happened  before  the  Revolution  that  a  Par- 
liament issued  a  warrant  against  a  public  officer  who  had 
committed  an  offence;  and  sometimes  the  proceedings 
were  annulled  by  the  authority  of  the  Crown.  Despotism 
then  displayed  itself  openly,  and  obedience  was  extorted 
by  force.  We  have  then  retrograded  from  the  point  which 
our  forefathers  had  reached,  since  we  allow  things  to  pass 
under  the  colour  of  justice  and  the  sanction  of  the  law, 
which  violence  alone  could  impose  upon  them. 


115 


CHAPTER  VII. 

POLITICAL  JURISDICTION  IN  TUB  UNITED  STATES. 

Definition  of  political  jurisdiction. — What  is  understood  by  political 
jurisdiction  in  France,  in  England,  and  in  the  United  States. — In 
America  the  political  judge  can  only  pass  sentence  on  public  offi- 
cers.— He  more  frequently  passes  a  sentence  of  removal  from  office 
than  a  penalty. — Political  jurisdiction  as  it  exists  in  the  United 
States  is,  notwithstanding  its  mildness,  and  perhaps  in  consequence 
of  that  mildness,  a  most  powerful  instrument  in  the  hands  of  the 
majority. 

I  UNDERSTAND,  by  political  jurisdiction,  that  temporary 
right  of  pronouncing  a  legal  decision  with  which  a  po- 
litical body  may  be  invested. 

In  absolute  governments  no  utility  can  accrue  from 
the  introduction  of  extraordinary  forms  of  procedure ; 
the  prince,  in  whose  name  an  offender  is  prosecuted,  is 
as  much  the  sovereign  of  the  courts  of  justice  as  of  every- 
thing else,  and  the  idea  which  is  entertained  of  his  power 
is  of  itself  a  sufficient  security.  The  only  thing  he  has 
to  fear  is,  that  the  external  formalities  of  justice  should 
be  neglected,  and  that  his  authority  should  be  disho- 
noured, from  a  wish  to  render  it  more  absolute.  But  in 
most  free  countries,  in  which  the  majority  can  never  ex- 
ercise the  same  influence  upon  the  tribunals  as  an  abso- 
lute monarch,  the  judicial  power  has  occasionally  been 
vested  for  a  time  in  the  representatives  of  society.  It  has 
been  thought  better  to  introduce  a  temporary  confusion 
between  the  functions  of  the  different  authorities,  than 
to  violate  the  necessary  principle  of  the  unity  of  govern- 
ment. 

England,  France,  and  the  United  States  have  esta- 
blished this  political  jurisdiction  in  their  laws ;  and  it  is 
curious  to  examine  the  different  use  which  these  three 
great  nations  have  made  of  the  principle.  In  England 


116 

and  in  France  the  House  of  Lords  and  the  Chambre  des 
Pairs  constitute  the  highest  criminal  court  of  their  re- 
spective nations ;  and  although  they  do  not  habitually 
try  all  political  offences,  they  are  competent  to  try  them 
all.  Another  political  body  enjoys  the  right  of  impeach- 
ment before  the  House  of  Lords :  the  only  difference 
which  exists  between  the  two  countries  in  this  respect 
is,  that  in  England  the  Commons  may  impeach  whom- 
soever they  please  before  the  Lords,  whilst  in  France 
the  Deputies  can  only  employ  this  mode  of  prosecution 
against  the  ministers  of  the  Crown. 

In  both  countries  the  Upper  House  may  make  use  of 
all  the  existing  penal  laws  of  the  nation  to  punish  the 
delinquents. 

In  the  United  States,  as  well  as  in  Europe,  one  branch 
of  the  legislature  is  authorized  to  impeach,  and  another 
to  judge:  the  House  of  Representatives  arraigns  the 
offender,  and  the  Senate  awards  his  sentence.  But  the 
Senate  can  only  try  such  persons  as  are  brought  before 
'  it  by  the  House  of  Representatives,  and  those  persons 
must  belong  to  the  class  of  public  functionaries.  Thus 
the  jurisdiction  of  the  Senate  is  less  extensive  than  that 
of  the  Peers  of  France,  whilst  the  right  of  impeachment 
by  the  Representatives  is  more  general  than  that  of  the 
Deputies.  But  the  great  difference  which  exists  between 
Europe  and  America  is,  that  in  Europe  political  tribunals 
are  empowered  to  inflict  all  the  dispositions  of  the  penal 
code,  whilst  in  America,  when  they  have  deprived  the 
offender  of  his  official  rank,  and  have  declared  him  in- 
capable of  filling  any  political  office  for  the  future,  their 
jurisdiction  terminates  and  that  of  the  ordinary  tribunals 
begins. 

Suppose,  for  instance,  that  the  President  of  the  United 
States  has  committed  the  crime  of  high  treason ;  the 
House  of  Representatives  impeaches  him.,  and  the  Senate 


117 

degrades  him  ;  he  must  then  be  tried  by  a  jury,  which 
alone  can  deprive  him  of  his  liberty  or  his  life.     This 
accurately  illustrates  the  subject  we  are  treating.     The 
political  jurisdiction  which  is  established  by  the  laws  of 
Europe  is  intended  to  try  great  offenders,  whatever  mav 
be  their  birth,  their  rank,  or  their  powers  in  the  State  ; 
and  to  this  end  all  the  privileges  of  the  courts  of  justice 
are  temporarily  extended  to  a  great  political  assembly. 
The  legislator  is  then  transformed  into  the  magistrate ; 
he  is  called  upon  to  admit,  to  distinguish,  and  to  punish 
the  offence ;  and  as  he  exercises  all  the  authority  of  a 
judge,  the  law  restricts  him  to  the  observance  of  all  the 
duties  of  that  high  office,  and  of  all  the  formalities  of 
justice.  When  a  public  functionary  is  impeached  before 
an  English  or  a  French  political  tribunal,  and  is  found 
guilty,  the  sentence  deprives  him  ipso  facto  of  his  func- 
tions, and  it  may  pronounce  him  to  be  incapable  of  re- 
suming them  or  any  others  for  the  future.     But  in  this 
case  the  political  interdict  is  a  consequence  of  the  sen- 
tence, and  not  the  sentence  itself.     In  Europe  the  sen- 
tence of  a  political  tribunal  is  therefore  to  be  regarded 
as  a  judicial  verdict,  rather  than  as  an  administrative 
measure.    In  the  United  States  the  contrary  takes  place ; 
and  although  the  decision  of  the  Senate  is  judicial  in  its 
form,  since  the  Senators  are  obliged  to  comply  with  the 
practices  and  formalities  of  a"  court  of  justice ;  although 
it  is  judicial  in  respect  to  the  motives  on  which  it  is 
founded,  since  the  Senate  is  in  general  obliged  to  take 
an  offence  at  common  law  as  the  basis  of  its  sentence ; 
nevertheless  the  object  of  the  proceeding  is  purely  ad- 
ministrative. 

If  it  had  been  the  intention  of  the  American  legislator 
to  invest  a  political  body  with  great  judicial  authority, 
its  action  would  not  have  been  limited  to  the  circle  of 
public  functionaries,  since  the  most  dangerous  enemies 


118 

of  the  State  may  be  in  the  possession  of  no  functions  at 
all ;  and  this  is  especially  true  in  republics,  where  party 
favour  is  the  first  of  authorities,  and  where  the  strength 
of  many  a  leader  is  increased  by  his  exercising  no  legal 
power.  If  it  had  been  the  intention  of  the  American 
legislator  to  give  society  the  means  of  repressing  State 
offences  by  exemplary  punishment,  according  to  the 
practice  of  ordinary  justice,  the  resources  of  the  penal 
code  would  all  have  been  placed  at  the  disposal  of  the 
political  tribunals.  But  the  weapon  with  which  they  are 
intrusted  is  an  imperfect  one,  and  it  can  never  reach  the 
most  dangerous  offenders ;  since  men  who  aim  at  the  en- 
tire subversion  of  the  laws  are  not  likely  to  murmur  at 
a  political  interdict. 

The  main  object  of  the  political  jurisdiction  which 
obtains  in  the  United  States  is,  therefore,  to  deprive  the 
citizen  of  an  authority  wrhich  he  has  used  amiss,  and 
to  prevent  him  from  ever  acquiring  it  again.  This  is 
evidently  an  administrative  measure  sanctioned  by  the 
formalities  of  a  judicial  decision.  In  this  matter  the 
Americans  have  created  a  mixed  system;  they  have 
surrounded  the  act  which  removes  a  public  functionary 
with  the  securities  of  a  political  trial ;  and  they  have  de- 
prived all  political  condemnations  of  their  severest  pe- 
nalties. Every  link  of  the  system  may  easily  be  traced 
from  this  point ;  we  at  once  perceive  why  the  American 
constitutions  subject  all  the  civil  functionaries  to  the 
jurisdiction  of  the  Senate,  whilst  the  military,  whose 
crimes  are  nevertheless  more  formidable,  are  exempted 
from  that  tribunal.  In  the  civil  service  none  of  the 
American  functionaries  can  be  said  to  be  removeable ; 
the  places  which  some  of  them  occupy  are  inalienable, 
and  the  others  derive  their  rights  from  a  power  which 
cannot  be  abrogated.  It  is  therefore  necessary  to  try 
them  all  in  order  to  deprive  them  of  their  authority. 


119 

But  military  officers  are  dependent  on  the  chief  magi- 
strate of  the  State,  who  is  himself  a  civil  functionary ; 
and  the  decision  which  condemns  him  is  a  blow  upon 
them  all. 

If  we  now  compare  the  American  and  the  European 
systems,  we  shall  meet  with  differences  no  less  striking 
in  the  different  effects  wThich  each  of  them  produces  or 
may  produce.  In  France  and  in  England  the  jurisdic- 
tion of  political  bodies  is  looked  upon  as  an  extraordi- 
nary resource,  which  is  only  to  be  employed  in  order  to 
rescue  society  from  unwonted  dangers.  It  is  not  to  be 
denied  that  these  tribunals,  as  they  are  constituted  in 
Europe,  are  apt  to  violate  the  conservative  principle  of 
the  balance  of  power  in  the  State,  and  to  threaten  in- 
cessantly the  lives  and  liberties  of  the  subject.  The 
same  political  jurisdiction  in  the  United  States  is  only 
indirectly  hostile  to  the  balance  of  power;  it  cannot 
menace  the  lives  of  the  citizens,  and  it  does  not  hover,  as 
in  Europe,  over  the  heads  of  the  community,  since  those 
only  who  have  beforehand  submitted  to  its  authority 
upon  accepting  office  are  exposed  to  its  severity.  It  is 
at  the  same  time  less  formidable  and  less  efficacious ; 
indeed,  it  has  not  been  considered  by  the  legislators  of 
the  United  States  as  a  remedy  for  the  more  violent  evils 
of  society,  but  as  an  ordinary  means  of  conducting  the 
government.  In  this  respect  it  probably  exercises  more 
real  influence  on  the  social  body  in  America  than  in  Eu- 
rope. We  must  not  be  misled  by  the  apparent  mildness 
of  the  American  legislation  in  all  that  relates  to  politi- 
cal jurisdiction.  It  is  to  be  observed,  in  the  first  place, 
that  in  the  United  States  the  tribunal  which  passes  sen- 
tence is  composed  of  the  same  elements,  and  subject  to 
the  same  influences,  as  the  body  which  impeaches  the 
offender,  and  that  this  uniformity  gives  an  almost  irre- 
sistible impulse  to  the  vindictive  passions  of  parties.  If 


political  judges  in  the  United  States  cannot  inflict  such 
heavy  penalties  as  those  of  Europe,  there  is  the  less 
chance  of  their  acquitting  a  prisoner  ;  and  the  convic- 
tion, if  it  is  less  formidable,  is  more  certain.  The  prin- 
cipal object  of  the  political  tribunals  of  Europe  is  to 
punish  the  offender ;  the  purpose  of  those  in  America 
is  to  deprive  him  of  his  authority.  A  political  condem- 
nation in  the  United  States  may,  therefore,  be  looked 
upon  as  a  preventive  measure ;  and  there  is  no  reason 
for  restricting  the  judges  to  the  exact  definitions  of  cri- 
minal law.  Nothing  can  be  more  alarming  than  the  ex- 
cessive latitude  with  which  political  offences  are  described 
in  the  laws  of  America.  Article  II.  Section  iv.  of  the 
Constitution  of  the  United  States  runs  thus:  "The  Pre- 
sident, Vice-President,  and  all  civil  officers  of  the  United 
States  shall  be  removed  from  office  on  impeachment  for, 
and  conviction  of,  treason,  bribery,  or  other  high  crimes 
and  misdemeanors."  Many  of  the  Constitutions  of  the 
States  are  even  less  explicit.  "  Public  officers,"  says 
the  Constitution  of  Massachusetts*,  "shall  be  impeached 
for  misconduct  or  maladministration."  The  Constitu- 
tion of  Virginia  declares  that  all  the  civil  officers  who 
shall  have  offended  against  the  State  by  maladministra- 
tion, corruption,  or  other  high  crimes,  may  be  impeached 
by  the  House  of  Delegates :  in  some  constitutions  no 
offences  are  specified,  in  order  to  subject  the  public 
functionaries  to  an  unlimited  responsibility-}-.  But  I 
will  venture  to  affirm,  that  it  is  precisely  their  mildness 
which  renders  the  American  laws  most  formidable  in 
this  respect.  We  have  shown  that  in  Europe  the  re- 
moval of  a  functionary  and  his  political  interdiction  are 
consequences  of  the  penalty  he  is  to  undergo,  and  that 

»  Chapter  I.  sect.  ii.  §.  8. 

t    See   the  Constitutions    of  Illinois,   Maine,   Connecticut,  and 
Georgia. 


121 

in  America  they  constitute  the  penalty  itself.  The  re- 
sult is,  that  in  Europe  political  tribunals  are  invested 
with  rights  which  they  are  afraid  to  use,  and  that  the 
fear  of  punishing  too  much  hinders  them  from  punish- 
ing at  all.  But  in  America  no  one  hesitates  to  inflict  a 
penalty  from  which  humanity  does  not  recoil.  To  con- 
demn a  political  opponent  to  death,  in  order  to  deprive 
him  of  his  power,  is  to  commit  what  all  the  world  would 
execrate  as  a  horrible  assassination ;  but  to  declare  that 
opponent  unworthy  to  exercise  that  authority,  to  deprive 
him  of  it,  and  to  leave  him  uninjured  in  life  and  liberty, 
may  appear  to  be  the  fair  issue  of  the  struggle.  But 
this  sentence,  which  it  is  so  easy  to  pronounce,  is  not 
the  less  fatally  severe  to  the  majority  of  those  upon 
whom  it  is  inflicted.  Great  criminals  may  undoubtedly 
brave  its  intangible  rigour,  but  ordinary  offenders  will 
dread  it  as  a  condemnation  which  destroys  their  position 
in  the  world,  casts  a  blight  upon  their  honour,  and  con- 
demns them  to  a  shameful  inactivity  worse  than  death. 
The  influence  exercised  in  the  United  States  upon  the 
progress  of  society  by  the  jurisdiction  of  political  bodies 
may  not  appear  to  be  formidable,  but  it  is  only  the  more 
immense.  It  does  not  act  directly  upon  the  governed, 
but  it  renders  the  majority  more  absolute  over  those  who 
govern;  it  does  not  confer  an  unbounded  authority  on 
the  legislator,  which  can  only  be  exerted  at  some  momen- 
tous crisis,  but  it  establishes  a  temperate  and  regular  in- 
fluence, which  is  at  all  times  available.  If  the  power  is 
decreased,  it  can,  on  the  other  hand,  be  more  conveni- 
ently employed,  and  more  easily  abused.  By  preventing 
political  tribunals  from  inflicting  judicial  punishments, 
the  Americans  seem  to  have  eluded  the  worst  conse- 
quences of  legislative  tyranny,  rather  than  tyranny  it- 
self; and  I  am  not  sure  that  political  jurisdiction,  as  it 
is  constituted  in  the  United  States,  is  not  the  most  for- 

VOL.  I.  G 


122 

midable  weapon  which  has  ever  been  placed  in  the  rude 
grasp  of  a  popular  majority.  When  the  American  re- 
publics begin  to  degenerate,  it  will  be  easy  to  verify  the 
truth  of  this  observation,  by  remarking  whether  the 
number  of  political  impeachments  augments*. 


CHAPTER  VIII. 

/ 

THE  FEDERAL  CONSTITUTION. 

I  HAVE  hitherto  considered  each  State  as  a  separate 
whole,  and  I  have  explained  the  different  springs  which 
the  people  sets  in  motion,  and  the  different  means  of  ac- 
tion which  it  employs.  But  all  the  States  which  I  have 
considered  as  independent  are  forced  to  submit,  in  cer- 
tain cases,  to*the  supreme  authority  of  the  Union.  The 
time  is  now  come  for  me  to  examine  the  partial  sove- 
reignty which  has  been  conceded  to  the  Union,  and  to 
cast  a  rapid  glance  over  the  Federal  Constitutionf. 


HISTORY  OF  THE  FEDERAL  CONSTITUTION. 

Origin  of  the  first  Union. — Its  weakness. — Congress  appeals  to  the 
constituent  authority. — Interval  of  two  years  between  this  appeal 
and  the  promulgation  of  the  new  Constitution. 

THE  thirteen  colonies  which  simultaneously  threw  off 
the  yoke  of  England  towards  the  end  of  the  last  century, 
professed,  as  I  have  already  observed,  the  same  religion, 
the  same  language,  the  same  customs,  and  almost  the 
same  laws;  they  were  struggling  against  a  common 
enemy;  and  these  reasons  were  sufficiently  strong  to 

*  See  Appendix,  N. 

t  See  the  Constitution  of  the  United  States  in  the  Appendix. 


123 

unite  them  one  to  another,  and  to  consolidate  them  into 
one  nation.  But  as  each  of  them  had  enjoyed  a  sepa- 
rate existence,  and  a  government  within  its  own  control, 
the  peculiar  interests  and  customs  which  resulted  from 
this  system  were  opposed  to  a  compact  and  intimate 
union  which  would  have  absorbed  the  individual  import- 
ance of  each  in  the  general  importance  of  all.  Hence 
arose  two  opposite  tendencies,  the  one  prompting  the 
Anglo-Americans  to  unite,  the  other  to  divide  their 
strength.  As  long  as  the  war  with  the  mother-country 
lasted,  the  principle  of  union  was  kept  alive  by  neces- 
sity ;  and  although  the  laws  which  constituted  it  were 
defective,  the  common  tie  subsisted  in  spite  of  their  im- 
perfections*. But  no  sooner  was  peace  concluded  than 
the  faults  of  the  legislation  became  manifest,  and  the 
State  seemed  to  be  suddenly  dissolved.  Each  colony 
became  an  independent  republic,  and  assumed  an  abso- 
lute sovereignty.  The  Federal  Government,  condemned 
to  impotence  by  its  constitution,  and  no  longer  sustained 
by  the  presence  of  a  common  danger,  witnessed  the  out- 
rages offered  to  its  flag  by  the  great  nations  of  Europe, 
whilst  it  wras  scarcely  able  to  maintain  its  ground  against 
the  Indian  tribes,  and  to  pay  the  interest  of  the  debt 
which  had  been  contracted  during  the  War  of  Inde- 
pendence. It  was  already  on  the  verge  of  destruction, 
when  it  officially  proclaimed  its  inability  to  conduct  the 
government,  and  appealed  to  the  constituent  authority 
of  the  nationf. 

If  America  ever  approached  (for  however  brief  a  time) 
that  lofty  pinnacle  of  glory  to  which  the  proud  fancy  of 

*  See  the  articles  of  the  first  confederation,  formed  in  1778.  This 
constitution  was  not  adopted  by  all  the  States  until  1781.  See  also 
the  analysis  given  of  this  constitution  in  the  Federalist,  from  No.  15 
to  No.  22,  inclusive,  and  Story's  '  Commentaries  on  the  Constitution 
of  the  United  States,'  pp.  85—115. 

f  Congress  made  this  declaration  on  the  21st  of  Feb.  1787. 

G2 


124 

its  inhabitants  is  wont  to  point,  it  \vas  at  the  solemn 
moment  at  which  the  power  of  the  nation  abdicated,  as 
it  were,  the  empire  of  the  land.  All  ages  have  furnished 
the  spectacle  of  a  people  struggling  with  energy  to  win 
its  independence ;  and  the  efforts  of  the  Americans  in 
throwing  off  the  English  yoke  have  been  considerably 
exaggerated.  Separated  from  their  enemies  by  three 
thousand  miles  of  ocean,  and  backed  by  a  powerful  ally, 
the  success  of  the  United  States  may  be  more  justly  at- 
tributed to  their  geographical  position  than  to  the  valour 
of  their  armies  or  the  patriotism  of  their  citizens.  It 
would  be  ridiculous  to  compare  the  American  war  to  the 
wars  of  the  French  Revolution,  or  the  efforts  of  the  Ame- 
ricans to  those  of  the  French,  who,  when  they  were  at- 
tacked by  the  whole  of  Europe,  without  credit  and  with- 
out allies,  were  still  capable  of  opposing  a  twentieth  part 
of  their  population  to  their  foes,  and  of  bearing  the  torch 
of  revolution  beyond  their  frontiers  whilst  they  stifled 
its  devouring  flame  within  the  bosom  of  their  country. 
But  it  is  a  novelty  in  the  history  of  society  to  see  a  great 
people  turn  a  calm  and  scrutinizing  eye  upon  itself  when 
apprised  by  the  legislature  that  the  wheels  of  govern- 
ment are  stopped ;  to  see  it  carefully  examine  the  extent 
of  the  evil,  and  patiently  wait  for  two  whole  years  until 
a  remedy  was  discovered,  which  it  voluntarily  adopted 
without  having  wrung  a  tear  or  a  drop  of  blood  from 
mankind.  At  the  time  when  the  inadequacy  of  the 
first  constitution  wras  discovered,  America  possessed  the 
double  advantage  of  that  calm  which  had  succeeded  the 
effervescence  of  the  revolution,  and  of  those  great  men 
who  had  led  the  revolution  to  a  successful  issue.  The 
assembly  which  accepted  the  task  of  composing  the  se- 
cond constitution  was  small*;  but  George  Washington 

*  It  consisted   of    fifty-five    members;     Washington,    Madison, 
Hamilton,  and  the  two  Morrises  were  amongst  the  number. 


125 

was  its  President,  and  it  contained  the  choicest  talents 
and  the  noblest  hearts  which  had  ever  appeared  in  the 
New  World.  This  national  commission,  after  long  and 
mature  deliberation,  offered  to  the  acceptance  of  the  peo- 
ple the  body  of  general  laws  which  still  rules  the  Union. 
All  the  States  adopted  it  successively*.  The  new  Fe- 
deral Government  commenced  its  functions  in  1789,  ___L<_ /• 

after  an  interregnum  of  two  years.     The  Revolution  of  7  / 

America  terminated  when  that  of  France  began.  ' 


SUMMARY  OF  THE  FEDERAL  CONSTITUTION. 

Division  of  authority  between  the  Federal  Government  and  the  States. 
— The  Government  of  the  States  is  the  rule ; — the  Federal  Go- 
vernment the  exception. 

THE  first  question  which  awaited  the  Americans  was 
intricate,  and  by  no  means  easy  of  solution  :  the  object 
was  so  to  divide  the  authority  of  the  different  States 
which  composed  the  Union,  that  each  of  them  should 
continue  to  govern  itself  in  all  that  concerned  its  inter- 
nal prosperity,  whilst  the  entire  nation,  represented  by 
the  Union,  should  continue  to  form  a  compact  body, 
and  to  provide  for  the  general  exigencies  of  the  people. 
It  was  as  impossible  to  determine  beforehand,  with  any 
degree  of  accuracy,  the  share  of  authority  which  each  of 
the  two  Governments  was  to  enjoy,  as  to  foresee  all  the 
incidents  in  the  existence  of  a  nation. 

The  obligations  and  the  claims  of  the  Federal  Govern- 
ment were  simple  and  easily  definable,  because  the  Union 
had  been  formed  with  the  express  purpose  of  meeting 
the  general  exigencies  of  the  people ;  but  the  claims  and 
obligations  of  the  States  were,  on  the  other  hand,  com- 

»  It  was  not  adopted  by  the  legislative  bodies,  but  representatives 
were  elected  by  the  people  for  this  sole  purpose;  and  the  new  con- 
stitution was  discussed  at  length  in  each  of  these  assemblies. 

*A^{ 


plicated  and  various,  because  those  Governments  pene- 
trated into  all  the  details  of  social  life.  The  attributes 
of  the  Federal  Government  were  therefore  carefully  enu- 
merated, and  aH  that  was  not  included  amongst  them 
was  declared  to  constitute  a  part  of  the  privileges  of  the 
several  Governments  of  the  States.  Thus  the  govern- 
ment of  the  States  remained  the  rule,  and  that  of  the 
Confederation  became  the  exception*. 

But  as  it  was  foreseen  that,  in  practice,  questions 
might  arise  as  to  the  exact  limits  of  this  exceptional  au- 
thority, and  that  it  would  be  dangerous  to  submit  these 
questions  to  the  decision  of  the  ordinary  courts  of  jus- 
tice, established  in  the  States  by  the  States  themselves, 
a  high  Federal  court  was  created  t>  which  was  destined, 
amongst  other  functions,  to  maintain  the  balance  of 
power  which  had  been  established  by  the  Constitution 
between  the  two  rival  Governments  |. 

*  See  the  Amendment  to  the  Federal  Constitution ;  Federalist,. 
No.  32.  Story,  p.  711.  Kent's  Commentaries,  vol.  i.  p.  364. 

It  is  to  be  observed,  that  whenever  the  exclusive  right  of  regulating 
certain  matters  is  not  reserved  to  Congress  by  the  Constitution,  the 
States  may  take  up  the  affair,  until  it  is  brought  before  the  National 
Assembly.  For  instance,  Congress  has  the  right  of  making  a  gene- 
ral law  on  bankruptcy,  which,_however,  it  neglects  to  do.  Each  State 
is  then  at  liberty  to  make  a  law  for  itself.  This  point,  however,  has 
been  established  by  discussion  in  the  law-courts,  and  may  be  said  to 
belong  more  properly  to  jurisprudence. 

f  The  action  of  this  court  is  indirect,  as  we  shall  hereafter  show. 

J  It  is  thus  that  the  Federalist,  No.  45,  explains  the  division  of  su- 
premacy between  the  Union  and  the  States :  "  The  powers  delegated 
by  the  Constitution  to  the  Federal  Government  are  few  and  defined. 
Those  which  are  to  remain  in  tfc«  State  Governments  are  numerous 
and  indefinite.  The  former  will  be  exercised  principally  on  external 
objects,  as  war,  peace,  negotiation,  and  foreign  commerce.  The  pow- 
ers reserved  to  the  several  States  wiB  extend  to  all  the  objects  which, 
in  the  ordinary  course  of  affairs,  concern  the  internal  order  and  pro- 
sperity of  the  State." 

I  shall  often  have  occasion  to  quote  the  Federalist  in  this  work. 
When  the  bill,  which  has  since  become  the  Constitution  of  the  United 
States,  was  submitted  to  the  approval  of  the  people,  and  the  discussions 
were  still  pending,  three  men,  who  had  already  acquired  a  portion  of 
that  celebrity  which  they  have  since  enjoyed,  John  Jay>  Hamilton., 


127 


PREROGATIVE  OF  THE  FEDERAL  GOVERNMENT. 

Power  of  declaring  war,  making  peace,  and  levying  general  taxes 
vested  in  the  Federal  Government. — What  part  of  the  internal 
policy  of  the  country  it  may  direct. — The  Government  of  the  Union 
in  some  respects  more  central  than  the  King's  Government  in  the 
OH  French  monarchy. 

THE  external  relations  of  a  people  may  be  compared  to 
those  of  private  individuals,  and  they  cannot  be  advan- 
tageously maintained  without  the  agency  of  the  single 
head  of  a  Government.  The  exclusive  right  of  making 
peace  and  war,  of  concluding  treaties  of  commerce,  of 
raising  armies,  and  equipping  fleets,  was  therefore  grant- 
ed to  the  Union*.  The  necessity  of  a  national  Govern- 
ment was  less  imperiously  felt  in  the  conduct  of  the  in- 
ternal affairs  of  society  ;  but  there  are  certain  general  in- 
terests which  can  only  be  attended  to  with  advantage  by 
a  general  authority.  The  Union  was  invested  with  the 
power  of  controling  the  monetary  system,  of  directing  the 
post-office,  and  of  opening  the  great  roads  which  were 
to  establish  a  communication  between  the  different  parts 
of  the  country  t.  The  independence  of  the  Government 
of  each  State  was  formally  recognised  in  its  sphere ;  ne- 
vertheless, the  Federal  Government  was  authorized  to 
interfere  in  the  internal  affairs  of  the  States  J  in  a  few 

and  Madison,  formed  an  association  with  the  intention  of  explaining 
to  the  nation  the  advantages  of  the  measure  which  was  proposed. 
With  this  view  they  published  a  series  of  articles  in  the  shape  of  a 
journal,  which  now  form  a  complete  treatise.  They  entitled  their 
journal  '  The  Federalist,'  a  name  which  has  been  retained  in  the  work. 
The  Federalist  is  an  excellent  book,  which  ought  to  be  familiar  to  the 
statesmen  of  all  countries,  although  it  especially  concerns  America. 

«  See  Constitution,  sect.  8.  Federalist,  Nos.  41  and  42.     Kent's 
Commentaries,  vol.  i.  p.  207.     Story,  pp.  358-382 ;  ibid.,  pp.  409 
426. 

f  Several  other  privileges  of  the  same  kind  exist,  such  as  that  which 
empowers  the  Union  to  legislate  on  bankruptcy,  to  grant  patents,  and 
other  matters  in  which  its  intervention  is  clearly  necessary. 

I  Even  in  these  cases  its  interference  is  indirect.  The  Union  in- 
terferes by  means  of  the  tribunals,  as  will  be  hereafter  shown. 


128 

predetermined  cases,  in  which  an  indiscreet  abuse  of 
their  independence  might  compromise  the  security  of 
the  Union  at  large.  Thus,  whilst  the  power  of  modify- 
ing and  changing  their  legislation  at  pleasure  was  pre- 
served in  all  the  republics,  they  were  forbidden  to  enact 
ex-post-facto  laws,  or  to  create  a  class  of  nobles  in  their 
community*.  Lastly,  as  it  was  necessary  that  the  Fede- 
ral Government  should  be  able  to  fulfill  its  engage- 
ments, it  was  endowed  with  an  unlimited  power  of 
levying  taxes  f. 

In  examining  the  balance  of  power  as  established  by 
the  Federal  Constitution  ;  in  remarking  on  the  one  hand 
the  portion  of  sovereignty  which  has  been  reserved  to  the 
several  States,  and  on  the  other  the  share  of  power  which 
the  Union  has  assumed,  it  is  evident  that  the  Federal 
legislators  entertained  the  clearest  and  most  accurate  no- 
tions on  the  nature  of  the  centralization  of  government. 
The  United  States  form  not  only  a  republic,  but  a  con- 
federation ;  nevertheless  the  authority  of  the  nation  is 
more  central  than  it  was  in  several  of  the  monarchies  of 
Europe  when  the  American  Constitution  was  formed. 
Take,  for  instance,  the  two  foUowing  examples. 

Thirteen  supreme  courts  of  justice  existed  in  France,^ 
which,  generally  speaking,  had  the  right  of  interpreting 
the  law  without  appeal ;  and  those  provinces  which 
were  styled  pays  cPEtats,  were  authorized  to  refuse  their 
assent  to  an  impost  which  had  been  levied  by  the 
sovereign  who  represented  the  nation. 

In  the  Union  there  is  but  one  tribunal  to  interpret, 
as  there  is  one  legislature  to  make,  the  laws ;  and  an 
impost  voted  by  the  representatives  of  the  nation  is 

*  Federal  Constitution,  sect.  10,  art.  1. 

t  Constitution,  sect.  8,  9,  and  10.  Federalist,  Nos.  30-36,  inclusive, 
and  41-44.  Kent's  Commentaries,  voU  i.  pp.  207  and. 381.  Story } 
pp.  329  and  514. 


129 

binding  upon  all  the  citizens.  In  these  two  essential 
points,  therefore,  the  Union  exercises  more  central  autho- 
rity than  the  French  monarchy  possessed,  although  the 
Union  is  only  an  assemblage  of  confederate  republics. 

In  Spain  certain  provinces  had  the  right  of  esta- 
blishing a  system  of  custom-house  duties  peculiar  to 
themselves,  although  that  privilege  belongs,  by  its  very 
nature,  to  the  national  sovereignty.  In  America  the 
Congress  alone  has  the  right  of  regulating  the  commer- 
cial relations  of  the  States.  The  government  of  the 
Confederation  is  therefore  more  centralized  in  this 
respect  than  the  kingdom  of  Spain.  It  is  true  that  the 
power  of  the  Crown  in  France  or  in  Spain  was  always 
able  to  obtain  by  force  whatever  the  Constitution  of  the 
country  denied,  and  that  the  ultimate  result  was  conse- 
quently the  same ;  but  I  am  here  discussing  the  theory 
of  the  Constitution. 


FEDERAL    POWERS. 

AFTER  having  settled  the  limits  witnin  which  the  Fede- 
ral Government  was  to  act,  the  next  point  was  to 
determine  the  powers  which  it  was  to  exert. 


LEGISLATIVE    POWERS. 

Division  of  the  Legislative  Body  into  two  branches. — Difference  in 
the  manner  of  forming  the  two  Houses. — The  principle  of  the  in- 
dependence of  the  States  predominates  in  the  formation  of  the 
Senate; — the  principle  of  the  sovereignty  of  the  nation  in  the 
composition  of  the  House  of  Representatives. — Singular  effects  of 
the  fact  that  a  Constitution  can  only  be  logical  in  the  early  stages 
of  a  nation. 

THE  plan  which  had  been  laid  down  beforehand  for  the 
Constitutions  of  the  several  States  was  followed,  in  many 

G  5 


130 

points,  in  the  organization  of  the  powers  of  the  Union. 
The  Federal  legislature  of  the  Union  was  composed  of 
a  Senate  and  a  House  of  Representatives.  A  spirit  of 
conciliation  prescribed  the  observance  of  distinct  prin- 
ciples in  the  formation  of  each  of  these  two  assemblies. 
I  have  already  shown  that  two  contrary  interests  were 
opposed  to  each  other  in  the  establishment  of  the  Federal 
Constitution.  These  two  interests  had  given  rise  to  two 
opinions.  It  was  the  wish  of  one  party  to  convert  the 
Union  into  a  league  of  independent  States,  or  a  sort  of 
congress,  at  which  the  representatives  of  the  several 
peoples  would  meet  to  discuss  certain  points  of  their 
common  interests.  The  other  party  desired  to  unite  the 
inhabitants  of  the  American  colonies  into  one  sole  na- 
tion, and  to  establish  a  Government,  which  should  act 
as  the  sole  representative  of  the  nation,  as  far  as  the 
limited  sphere  of  its  authority  would  permit.  The 
practical  consequences  of  these  two  theories  were  ex- 
ceedingly different. 

The  question  was,  whether  a  league  was  to  be  esta- 
blished instead  of  a  national  Government ;  whether  the 
majority  of  the  States,  instead  of  the  majority  of  the 
inhabitants  of  the  Union,  was  to  give  the  law  :  for  every 
State,  the  small  as  well  as  the  great,  then  retained  the 
character  of  an  independent  power,  and  entered  the 
Union  upon  a  footing  of  perfect  equality.  If,  on  the 
contrary,  the  inhabitants  of  the  United  States  were  to  be 
considered  as  belonging  to  one  and  the  same  nation,  it 
was  natural  that  the  majority  of  the  citizens  of  the  Union 
should  prescribe  the  law.  Of  course  the  lesser  States 
could  not  subscribe  to  the  application  of  this  doctrine 
without,  in  fact,  abdicating  their  existence  in  relation  to 
the  sovereignty  of  the  Confederation  ;  since  they  would 
have  passed  from  the  condition  of  a  coequal  and  co- 
legislative  authority,  to  that  of  an  insignificant  fraction 


131 

of  a  great  people.  The  former  system  would  have 
invested  them  with  an  excessive  authority,  the  latter 
would  have  annulled  their  influence  altogether.  Under 
these  circumstances,  the  result  was,  that  the  strict  rules 
of  logic  were  evaded,  as  is  usually  the  case  when  interests 
are  opposed  to  arguments.  A  middle  course  was  hit 
upon  by  the  legislators,  which  brought  together  by 
force  two  systems  theoretically  irreconcileable. 

The  principle  of  the  independence  of  the  States  pre- 
vailed in  the  formation  of  the  Senate,  and  that  of  the 
sovereignty  of  the  nation  predominated  in  the  composi- 
tion of  the  House  of  Representatives.  It  was  decided 
that  each  State  should  send  two  senators  to  Congress, 
and  a  number  of  representatives  proportioned  to  its 
population*.  It  results  from  this  arrangement  that  the 
State  of  New  York  has  at  the  present  day  forty  repre- 
sentatives, and  only  two  senators;  the  State  of  Delaware 
has  two  senators,  and  only  one  representative ;  the  State 
of  Delaware  is  therefore  equal  to  the  State  of  New  York 
in  the  Senate,  whilst  the  latter  has  forty  times  the 
influence  of  the  former  in  the  House  of  Representatives. 
Thus,  if  the  minority  of  the  nation  preponderates  in  the 
Senate,  it  may  paralyse  the  decisions  of  the  majority 
represented  in  the  other  House,  wrhich  is  contrary  to 
the  spirit  of  constitutional  government. 

»  Every  ten  years  Congress  fixes  anew  the  number  of  representa- 
tives which  each  State  is  to  furnish.  The  total  number  was  69  in 
1789,  and  240  in  1833.  (See  American  Almanac,  1834,  p.  194.) 

The  Constitution  decided  that  there  should  not  be  more  than  one 
representative  for  every  30,000  persons  ;  but  no  minimum  was  fixed 
on.  The  Congress  has  not  thought  fit  to  augment  the  number  of 
representatives  in  proportion  to  the  increase  of  population.  The 
first  Act  which  was  passed  on  the  subject  (14th  of  April,  1792 :  see 
Laws  of  the  United  States  by  Story,  vol.  i.  p.  235,)  decided  that  there 
should  be  one  representative  for  every  33,000  inhabitants.  The  last 
Act,  which  was  passed  in  1832,  fixes  the  proportion  at  one  for  48,000- 
The  population  represented  is  composed  of  all  the  freemen  and  of 
three  fifths  of  the  slaves. 


132 

These  facts  show  how  rare  and  how  difficult  it  is 
rationally  and  logically  to  combine  all  the  several  parts 
of  legislation.  In  the  course  of  time  different  interests 
arise,  and  different  principles  are  sanctioned  by  the  same 
people  ;  and  when  a  general  constitution  is  to  be  esta- 
blished, these  interests  and  principles  are  so  many  natural 
obstacles  to  the  rigorous  application  of  any  political 
system,  with  all  its  consequences.  The  early  stages  of 
national  existence  are  the  only  periods  at  which  it  is 
possible  to  maintain  the  complete  logic  of  legislation ; 
and  when  we  perceive  a  nation  in  the  enjoyment  of  this 
advantage,  before  we  hasten  to  conclude  that  it  is  wise, 
we  should  do  well  to  remember  that  it  is  young.  When 
the  Federal  Constitution  was  formed,  the  interest  of 
independence  for  the  separate  States,  and  the  interest 
of  Union  for  the  whole  people,  were  the  only  two 
conflicting  interests  which  existed  amongst  the  Anglo- 
Americans  ;  and  a  compromise  was  necessarily  made 
between  them. 

It  is,  however,  just  to  acknowledge  that  this  part  of 
the  Constitution  has  not  hitherto  produced  those  evils 
which  might  have  been  feared.  All  the  States  are  young 
and  contiguous;  their  customs,  their  ideas,  and  their 
wants  are  not  dissimilar;  and  the  differences  which 
result  from  their  size  or  inferiority  do  not  suffice  to  set 
their  interests  at  variance.  The  small  States  have  con- 
sequently never  been  induced  to  league  themselves  to- 
gether in  the  Senate  to  oppose  the  designs  of  the  larger 
ones ;  and  indeed  there  is  so  irresistible  an  authority  in 
the  legitimate  expression  of  the  will  of  a  people,  that  the 
Senate  could  offer  but  a  feeble  opposition  to  the  vote  of 
the  majority  of  the  House  of  Representatives. 

It  must  not  be  forgotten,  on  the  other  hand,  that  it 
was  not  in  the  power  of  the  American  legislators  to 
reduce  to  a  single  nation  the  people  for  whom  they  were 


133 

making  laws.  The  object  of  the  Federal  Constitution 
was  not  to  destroy  the  independence  of  the  States,  but 
to  restrain  it.  By  acknowledging  the  real  authority  of 
these  secondary  communities,  (and  it  was  impossible  to 
deprive  them  of  it,)  they  disavowed  beforehand  the 
habitual  use  of  constraint  in  enforcing  the  decisions  of 
the  majority.  Upon  this  principle  the  introduction  of 
the  influence  of  the  States  into  the  mechanism  of  the 
Federal  Government  was  by  no  means  to  be  wondered 
at ;  since  it  only  attested  the  existence  of  an  acknow- 
ledged power,  which  was  to  be  humoured,  and  not 
forcibly  checked. 


A     FURTHER     DIFFERENCE     BETWEEN     THE     SENATE 
AND    THE    HOUSE    OF    REPRESENTATIVES. 

The  Senate  named  by  the  provincial  legislators; — the  Representa- 
tives, by  the  people. — Double  election  of  the  former; — single 
election  of  the  latter. — Term  of  the  different  offices. — Peculiar 
functions  of  each  House. 

THE  Senate  not  only  differs  from  the  other  House  in 
the  principle  which  it  represents,  but  also  in  the  mode 
of  its  election,  in  the  term  for  which  it  is  chosen,  and  in 
the  nature  of  its  functions.  The  House  of  Representa- 
tives is  named  by  the  people,  the  Senate  by  the  legisla- 
tors of  each  State ;  the  former  is  directly  elected,  the 
latter  is  elected  by  an  elected  body ;  the  term  for  which 
the  representatives  are  chosen  is  only  two  years,  that  of 
the  senators  is  six.  The  functions  of  the  House  of 
Representatives  are  purely  legislative,  and  the  only  share 
it  takes  in  the  judicial  power  is  in  the  impeachment  of 
public  officers.  The  Senate  cooperates  in  the  work  of 
legislation,  and  tries  those  political  offences  which  the 
House  of  Representatives  submits  to  its  decision.  It 


134 

also  acts  as  the  great  executive  council  of  the  nation ; 
the  treaties  which  are  concluded  by  the  President  must 
be  ratified  by  the  Senate ;  and  the  appointments  he  may 
make  must  be  definitively  approved  by  the  same  body*. 


THE    EXECUTIVE    POWERf. 

Dependence  of  the  President. — He  is  elective  and  responsible. — He 
is  free  to  act  in  his  own  sphere  under  the  inspection,  but  not  under 
the  direction,  of  the  Senate. — His  salary  fixed  at  his  entry  into 
office. — Suspensive  veto. 

THE  American  legislators  undertook  a  difficult  task  in 
attempting  to  create  an  executive  power  dependent  on 
the  majority  of  the  people,  and  nevertheless  sufficiently 
strong  to  act  without  restraint  in  its  own  sphere.  It 
was  indispensable  to  the  maintenance  of  the  republican 
form  of  government  that  the  representative  of  the  execu- 
tive power  should  be  subject  to  the  will  of  the  nation. 

The  President  is  an  elective  magistrate.  His  honour, 
his  property,  his  liberty,  and  his  life  are  the  securities 
which  the  people  has  for  the  temperate  use  of  his  power. 
But  in  the  exercise  of  his  authority  he  cannot  be  said 
to  be  perfectly  independent;  the  Senate  takes  cogni- 
zance of  his  relations  with  foreign  powers,  and  of  the 
distribution  of  public  appointments,  so  that  he  can 
neither  be  bribed,  nor  can  he  employ  the  means  of  cor- 
ruption. The  legislators  of  the  Union  acknowledged 
that  the  executive  power  would  be  incompetent  to  fulfill 
its  task  with  dignity  and  utility,  unless  it  enjoyed  a 
greater  degree  of  stability  and  of  strength  than  had  been 
granted  it  in  the  separate  States. 

*  See  The  Federalist,  Nos.  52—66,  inclusive.  Story,  pp.  199— 
314.  Constitution  of  the  United  States,  sections  2  and  3. 

t  See  The  Federalist,  Nos.  67—77.  Constitution  of  the  U.  S., 
art.  2.  Story,  p.  315,  pp.  515 — 780.  Kent's  Commentaries,  p.  255. 


135 

The  President  is  chosen  for  four  years,  and  he  may 
be  re-elected ;  so  that  the  chances  of  a  prolonged  ad- 
ministration may  inspire  him  with  hopeful  undertakings 
for  the  public  good,  and  with  the  means  of  carrying 
them  into  execution.  The  President  was  made  the  sole 
representative  of  the  executive  power  of  thellnion  ;  and 
care  was  taken  not  to  render  his  decisions  subordinate 
to  the  vote  of  a  council, — a  dangerous  measure,  which 
tends  at  the  same  time  to  clog  the  action  of  the  Govern- 
ment and  to  diminish  its  responsibility.  The  Senate 
has  the  right  of  annulling  certain  acts  of  the  President ; 
but  it  cannot  compel  him  to  take  any  steps,  nor  does  it 
participate  in  the  exercise  of  the  executive  power. 

The  action  of  the  legislature  on  the  executive  power 
may  be  direct ;  and  we  have  just  shown  that  the  Ame- 
ricans carefully  obviated  this  influence :  but  it  may,  on 
the  other  hand,  be  indirect.  Public  assemblies  which 
have  the  power  of  depriving  an  officer  of  state  of  his 
salary,  encroach  upon  his  independence ;  and  as  they  are 
free  to  make  the  laws,  it  is  to  be  feared  lest  they  should 
gradually  appropriate  to  themselves  a  portion  of  that 
authority  which  the  Constitution  had  vested  in  his 
hands.  This  dependence  of  the  executive  power  is  one 
of  the  defects  inherent  in  republican  constitutions.  The 
Americans  have  not  been  able  to  counteract  the  tend- 
ency which  legislative  assemblies  have  to  get  possession 
of  the  government,  but  they  have  rendered  this  pro- 
pensity less  irresistible.  The  salary  of  the  President  is 
fixed,  at  the  time  of  his  entering  upon  office,  for  the 
whole  period  of  his  magistracy.  The  President  is  more- 
over provided  with  a  suspensive  veto,  which  allows  him 
to  oppose  the  passing  of  such  laws  as  might  destroy 
the  portion  of  independence  which  the  Constitution 
awards  him.  The  struggle  between  the  President  and 
the  legislature  must  always  be  an  unequal  one,  since 


136 

the  latter  is  certain  of  bearing  down  all  resistance  by 
persevering  in  its  plans ;  but  the  suspensive  veto  forces 
it  at  least  to  reconsider  the  matter,  and,  if  the  motion  be 
persisted  in,  it  must  then  be  backed  by  a  majority  of 
two  thirds  of  the  whole  house.  The  veto  is,  in  fact,  a 
sort  of  appeal  to  the  people.  The  executive  power, 
which,  without  this  security,  might  have  been  secretly 
oppressed,  adopts  this  means  of  pleading  its  cause  and 
stating  its  motives.  But  if  the  legislature  is  certain  of 
overpowering  all  resistance  by  persevering  in  its  plans, 
I  reply,  that  in  the  constitutions  of  all  nations,  of  what- 
ever kind  they  may  be,  a  certain  point  exists  at  which 
the  legislator  is  obliged  to  have  recourse  to  the  good 
sense  and  the  virtue  of  his  fellow-citizens.  This  point 
is  more  prominent  and  more  discoverable  in  republics, 
whilst  it  is  more  remote  and  more  carefully  concealed 
in  monarchies ;  but  it  always  exists  somewhere.  There 
is  no  country  in  the  world  in  which  everything  can  be 
provided  for  by  the  laws,  or  in  which  political  institu- 
tions can  prove  a  substitute  for  common  sense  and 
public  morality. 

DIFFERENCES  BETWEEN  THE  POSITION  OF  THE  PRESI- 
DENT OF  THE  UNITED  STATES  AND  THAT  OF  A  CON- 
STITUTIONAL KING  OF  FRANCE. 

Executive  power  in  the  United  States  as  limited  and  as  partial  as  the 
supremacy  which  it  represents. — Executive  power  in  France  as 
universal  as  the  supremacy  it  represents. — The  King  a  branch  of 
the  legislature. — The  President  the  mere  executor  of  the  law. — 
Other  differences  resulting  from  the  duration  of  the  two  powers. — 
The  President  checked  in  the  exercise  of  the  executive  authority. 
— The  King  independent  in  its  exercise. — Notwithstanding  these 
discrepancies  France  is  more  akin  to  a  republic  than  the  Union  to 
a  monarchy. — Comparison  of  the  number  of  public  officers  depend- 
ing upon  the  executive  power  in  the  two  countries. 

THE  executive  power  has  so  important  an  influence  on 


137 

the  destinies  of  nations  that  I  am  inclined  to  pause  for 
an  instant  at  this  portion  of  my  subject,  in  order  more 
clearly  to  explain  the  part  it  sustains  in  America.  In 
order  to  form  an  accurate  idea  of  the  position  of  the 
President  of  the  United  States,  it  may  not  be  irrelevant 
to  compare  it  to  that  of  one  of  the  constitutional  kings 
of  Europe.  In  this  comparison  I  shall  pay  but  little 
attention  to  the  external  signs  of  power,  which  are  more 
apt  to  deceive  the  eye  of  the  observer  than  to  guide  his 
researches.  When  a  monarchy  is  being  gradually  trans- 
formed into  a  republic,  the  executive  power  retains  the 
titles,  the  honours,  the  etiquette,  and  even  the  funds  of 
royalty  long  after  its  authority  has  disappeared.  The 
English,  after  having  cut  off  the  head  of  one  king,  and 
expelled  another  from  his  throne,  were  accustomed  to 
accost  the  successor  of  those  princes  upon  their  knees. 
On  the  other  hand,  when  a  republic  falls  under  the 
sway  of  a  single  individual,  the  demeanour  of  the  sove- 
reign is  simple  and  unpretending,  as  if  his  authority 
was  not  yet  paramount.  When  the  emperors  exercised 
an  unlimited  control  over  the  fortunes  and  the  lives  of 
their  fellow-citizens,  it  was  customary  to  call  them  Caesar 
in  conversation,  and  they  were  in  the  habit  of  supping 
without  formality  at  their  friends5  houses.  It  is  there- 
fore necessary  to  look  below  the  surface. 

The  sovereignty  of  the  United  States  is  shared  be- 
tween the  Union  and  the  States,  whilst  in  France  it  is. 
undivided  and  compact :  hence  arises  the  first  and  the 
most  notable  difference  which  exists  between  the  Presi- 
dent, of  the  United  States  and  the  King  of  France.  In 
the  United  States  the  executive  power  is  as  limited  and 
partial  as  the  sovereignty  of  the  Union  in  whose  name 
it  acts  ;  in  France  it  is  as  universal  as  the  authority  of 
the  State.  The  Americans  have  a  federal,  and  the 
French  a  national  Government. 


138 

This  first  cause  of  inferiority  results  from  the  nature 
of  things,  but  it  is  not  the  only  one ;  the  second  in  im- 
portance is  as  follows  :  Sovereignty  may  be  defined  to 
be  the  right  of  making  laws :  in  France,  the  King 
really  exercises  a  portion  of  the  sovereign  power,  since 
the  laws  have  no  weight  till  he  has  given  his  assent  to 
them ;  he  is  moreover  the  executor  of  all  they  ordain. 
The  President  is  also  the  executor  of  the  laws,  but  he 
does  not  really  cooperate  in  their  formation,  since  the 
refusal  of  his  assent  does  not  annul  them.  He  is  there- 
fore merely  to  be  considered  as  the  agent  of  the  sove- 
reign power.  But  not  only  does  the  King  of  France 
exercise  a  portion  of  the  sovereign  power,  he  also  con- 
tributes to  the  nomination  of  the  legislature,  which  ex- 
ercises the  other  portion.  He  has  the  privilege  of  ap- 
pointing the  members  of  one  chamber,  and  of  dissolving 
the  other  at  his  pleasure ;  whereas  the  President  of  the 
United  States  has  no  share  in  the  formation  of  the  legis- 
lative body,  and  cannot  dissolve  any  part  of  it.  The 
King  has  the  same  right  of  bringing  forward  measures 
as  the  Chambers ;  a  right  which  the  President  does  not 
possess.  The  King  is  represented  in  each  assembly  by 
his  ministers,  who  explain  his  intentions,  support  his 
opinions,  and  maintain  the  principles  of  the  Govern- 
ment. The  President  and  his  ministers  are  alike  exclud- 
ed from  Congress ;  so  that  his  influence  and  his  opi- 
nions can  only  penetrate  indirectly  into  that  great  body. 
The  King  of  France  is  therefore  on  an  equal  footing 
with  the  legislature,  which  can  no  more  act  without  him, 
than  he  can  without  it.  The  President  exercises  an 
authority  inferior  to,  and  depending  upon,  that  of  the 
legislature. 

Even  in  the  exercise  of  the  executive  power,  properly 
so  called, — the  point  upon  which  his  position  seems  to 
be  most  analogous  to  that  of  the  King  of  France, — the 


139 

President  labours  under  several  causes  of  inferiority. 
The  authority  of  the  King,  in  France,  has,  in  the  first 
place,  the  advantage  of  duration  over  that  of  the  Presi- 
dent :  and  durability  is  one  of  the  chief  elements  of 
strength ;  nothing  is  either  loved  or  feared  but  what  is 
likely  to  endure.  The  President  of  the  United  States  is 
a  magistrate  elected  for  four  years.  The  King,  in  France, 
is  an  hereditary  sovereign. 

In  the  exercise  of  the  executive  power  the  President 
of  the  United  States  is  constantly  subject  to  a  jealous 
scrutiny.  He  may  make,  but  he  cannot  conclude,  a 
treaty;  he  may  designate,  but  he  cannot  appoint,  a 
public  officer*.  The  King  of  France  is  absolute  in  the 
sphere  of  the  executive  power. 

The  President  of  the  United  States  is  responsible  for 
his  actions ;  but  the  person  of  the  King  is  declared  in- 
violable by  the  French  Charter. 

Nevertheless,  the  supremacy  of  public  opinion  is  no 
less  above  the  head  of  the  one  than  of  the  other.  This 
power  is  less  definite,  less  evident,  and  less  sanctioned 
by  the  laws  in  France  than  in  America,  but  in  fact  it 
exists.  In  America  it  acts  by  elections  and  decrees  ;  in 
France  it  proceeds  by  revolutions :  but  notwithstanding 
the  different  constitutions  of  these  two  countries,  public 
opinion  is  the  predominant  authority  in  both  of  them. 
The  fundamental  principle  of  legislation — a  principle 
essentially  republican — is  the  same  in  both  countries, 
although  its  consequences  may  be  different,  and  its  re- 
sults more  or  less  extensive.  Whence  I  am  led  to 
conclude,  that  France  with  its  King  is  nearer  akin  to  a 

»  The  Constitution  had  left  it  doubtful  whether  the  President  was 
obliged  to  consult  the  Senate  in  the  removal  as  well  as  in  the  ap- 
pointment of  Federal  officers.  The  Federalist  (No.  77.)  seemed  to 
establish  the  affirmative  ;  but  in  1 789  Congress  formally  decided  that 
as  the  President  was  responsible  for  his  actions,  he  ought  not  to  be 
forced  to  employ  agents  who  had  forfeited  his  esteem.  See  Kent's 
Commentaries,  vol.  i.  p.  289. 


140 

republic,  than  the  Union  with  its  President  is  to  a 
monarchy. 

In  what  I  have  been  saying  I  have  only  touched 
upon  the  main  points  of  distinction;  and  if  I  could 
have  entered  into  details,  the  contrast  would  have  been 
rendered  still  more  striking. 

I  have  remarked  that  the  authority  of  the  President 
in  the  United  States  is  only  exercised  within  the  limits 
of  a  partial  sovereignty,  whilst  that  of  the  King,  in 
France,  is  undivided.  I  might  have  gone  on  to  show 
that  the  power  of  the  King's  government  in  France  ex- 
ceeds its  natural  limits,  however  extensive  they  may  be, 
and  penetrates  in  a  thousand  different  ways  into  the 
administration  of  private  interests.  Amongst  the  exam- 
ples of  this  influence  may  be  quoted  that  which  results 
from  the  great  number  of  public  functionaries,  who  all 
derive  their  appointments  from  the  Government.  This 
number  now  exceeds  all  previous  limits  ;  it  amounts  to 
138,000*  nominations,  each  of  which  may  be  considered 
as  an  element  of  power.  The  President  of  the  United 
States  has  not  the  exclusive  right  of  making  any  public 
appointments,  and  their  whole  number  scarcely  exceeds 
1 2,000  f. 

ACCIDENTAL  CAUSES  WHICH  MAY  INCREASE  THE  IN- 
FLUENCE OF  THE  EXECUTIVE. 

External  security  of  the  Union.— Army  of  six  thousand  men. — Few 
ships. — The  President  has  no  opportunity  of  exercising  his  great 
prerogatives. — In  the  prerogatives  he  exercises  he  is  weak. 

IF  the  executive  power  is  feebler  in  America  than  in 

*  The  sums  annually  paid  by  the  State  to  these  officers  amount  to 
200,000,000  francs  (eight  millions  sterling). 

f  This  number  is  extracted  from  the  'National  Calendar'  for 
1833.  The  National  Calendar  is  an  American  Almanac  which  con- 
tains the  names  of  all  the  Federal  officers. 

It  results  from  this  comparison  that  the  King  of  France  has  eleven 
times  as  many  places  at  his  disposal  as  the  President,  although  the 
population  of  France  is  not  much  more  than  double  that  of  the 
Union. 


141 

France,  the  cause  is  more  attributable  to  the  circum- 
stances than  to  the  laws  of  the  country. 

It  is  chiefly  in  its  foreign  relations  that  the  executive 
power  of  a  nation  is  called  upon  to  exert  its  skill  and  its 
vigour.  If  the  existence  of  the  Union  were  perpetually 
threatened,  and  if  its  chief  interests  were  in  daily  con- 
nexion with  those  of  other  powerful  nations,  the  execu- 
tive government  would  assume  an  increased  importance 
in  proportion  to  the  measures  expected  of  it,  and  those 
which  it  would  carry  into  effect.  The  President  of  the 
United  States  is  the  commander-in-chief  of  the  army, 
but  of  an  army  composed  of  only  six  thousand  men  ;  he 
commands  the  fleet,  but  the  fleet  reckons  but  few  sail ; 
he  conducts  the  foreign  relations  of  the  Union,  but  the 
United  States  are  a  nation  without  neighbours.  Sepa- 
rated from  the  rest  of  the  world  by  the  Ocean,  and  too 
weak  as  yet  to  aim  at  the  dominion  of  the  seas,  they 
have  no  enemies,  and  their  interests  rarely  come  into 
contact  with  those  of  any  other  nation  of  the  globe. 

The  practical  part  of  a  Government  must  not  be  judged 
by  the  theory  of  its  constitution.  The  President  of  the 
United  States  is  in  the  possession  of  almost  royal  pre- 
rogatives, which  he  has  no  opportunity  of  exercising ; 
and  those  privileges  which  he  can  at  present  use  are 
very  circumscribed :  the  laws  allow  him  to  possess  a 
degree  of  influence  which  circumstances  do  not  permit 
him  to  employ. 

On  the  other  hand,  the  great  strength  of  the  royal 
prerogative  in  France  arises  from  circumstances  far  more 
than  from  the  laws.  There  the  executive  government 
is  constantly  struggling  against  prodigious  obstacles, 
and  exerting  all  its  energies  to  repress  them ;  so  that  it 
increases  by  the  extent  of  its  achievements,  and  by  the 
importance  of  the  events  it  controls,  without  for  that 
reason  modifying  its  constitution.  If  the  laws  had  made 


142 

it  as  feeble  and  as  circumscribed  as  it  is  in  the  Union, 
its  influence  would  very  soon  become  much  greater. 


WHY  THE  PRESIDENT  OF  THE  UNITED  STATES  DOES 
NOT  REQUIRE  THE  MAJORITY  OF  THE  TWO  HOUSES 
IN  ORDER  TO  CARRY  ON  THE  GOVERNMENT. 

IT  is  an  established  axiom  in  Europe  that  a  constitu- 
tional King  cannot  persevere  in  a  system  of  government 
which  is  opposed  by  the  two  other  branches  of  the  le- 
gislature. But  several  Presidents  of  the  United  States 
have  been  known  to  lose  the  majority  in  the  legislative 
body,  without  being  obliged  to  abandon  the  supreme 
power,  and  without  inflicting  a  serious  evil  upon  society. 
I  have  heard  this  fact  quoted  as  an  instance  of  the  in- 
dependence and  the  power  of  the  executive  government 
in  America :  a  moment's  reflection  will  convince  us,  on 
the  contrary,  that  it  is  a  proof  of  its  extreme  weakness. 
A  King  in  Europe  requires  the  support  of  the  legis- 
lature to  enable  him  to  perform  the  duties  imposedupon 
him  by  the  Constitution,  because  those  duties  are  enor- 
mous. A  constitutional  King  in  Europe  is  not  merely 
the  executor  of  the  law,  but  the  execution  of  its  pro- 
visions devolves  so  completely  upon  him,  that  he  has 
the  power  of  paralysing  its  influence  if  it  opposes  his 
designs.  He  requires  the  assistance  of  the  legislative 
assemblies  to  make  the  law,  but  those  assemblies  stand 
in  need  of  his  aid  to  execute  it :  these  two  authorities 
cannot  subsist  without  each  other,  and  the  mechanism 
of  government  is  stopped  as  soon  as  they  are  at  variance. 
In  America  the  President  cannot  prevent  any  law  from 
being  passed,  nor  can  he  evade  the  obligation  of  enfor- 
cing it.  His  sincere  and  zealous  cooperation  is  no 
doubt  useful,  but  it  is  not  indispensable,  in  the  carrying 


143 

on  of  public  affairs.  All  his  important  acts  are  directly 
or  indirectly  submitted  to  the  legislature ;  and  where  he 
is  independent  of  it  he  can  do  but  little.  It  is  therefore 
his  weakness,  and  not  his  power,  which  enables  him  to 
remain  in  opposition  to  Congress.  In  Europe,  harmony 
must  reign  between  the  Crown  and  the  other  branches 
of  the  legislature,  because  a  collision  betwreen  them  may 
prove  serious  ;  in  America,  this  harmony  is  not  indispen- 
sable, because  such  a  collision  is  impossible. 


ELECTION    OF    THE    PRESIDENT. 

Dangers  of  the  elective  system  increase  in  proportion  to  the  extent  of 
the  prerogative. — This  system  possible  in  America  because  no 
powerful  executive  authority  is  required. — What  circumstances  are 
favourable  to  the  elective  system. — Why  the  election  of  the  Presi- 
dent does  not  cause  a  deviation  from  the  principles  of  the  Govern- 
ment.— Influence  of  the  election  of  the  President  on  secondary 
functionaries. 

THE  dangers  of  the  system  of  election  applied  to  the 
head  of  the  executive  government  of  a  great  people  have 
been  sufficiently  exemplified  by  experience  and  by 
history ;  and  the  remarks  I  am  about  to  make  refer  to 
America  alone.  These  dangers  may  be  more  or  less 
formidable  in  proportion  to  the  place  which  the  executive 
power  occupies,  and  to  the  importance  it  possesses  in 
the  State ;  and  they  may  vary  according  to  the  mode  of 
election,  and  the  circumstances  in  which  the  electors  are 
placed.  The  most  weighty  argument  against  the  election 
of  a  chief  magistrate  is,  that  it  offers  so  splendid  a  lure 
to  private  ambition,  and  is  so  apt  to  inflame  men  in  the 
pursuit  of  power,  that  when  legitimate  means  are  want- 
ing, force  may  not  unfrequently  seize  what  right  denies. 
It  is  clear  that  the  greater  the  privileges  of  the  execu- 
tive authority  are,  the  greater  is  the  temptation;  the 


144 

more  the  ambition  of  the  candidates  is  excited,  the 
more  warmly  are  their  interests  espoused  by  a  throng  of 
partisans  who  hope  to  share  the  power  when  their  pa- 
tron has  won  the  prize.  The  dangers  of  the  elective 
system  increase,  therefore,  in  the  exact  ratio  of  the 
influence  exercised  by  the  executive  power  in  the  affairs 
of  State.  The  revolutions  of  Poland  are  not  solely 
attributable  to  the  elective  system  in  general,  but  to  the 
fact  that  the  elected  magistrate  was  the  head  of  a  power- 
ful monarchy.  Before  we  can  discuss  the  absolute  ad- 
vantages of  the  elective  system,  we  must  make  preli- 
minary inquiries  as  to  whether  the  geographical  position, 
the  laws,  the  habits,  the  manners,  and  the  opinions  of 
the  people  amongst  whom  it  is  to  be  introduced,  will 
admit  of  the  establishment  of  a  weak  and  dependent 
executive  government ;  for  to  attempt  to  render  the  re- 
presentative of  the  State  a  powerful  sovereign,  and  at 
the  same  time  elective,  is,  in  my  opinion,  to  entertain 
two  incompatible  designs.  To  reduce  hereditary  royalty 
to  the  condition  of  an  elective  authority,  the  only  means 
that  I  am  acquainted  with  are  to  circumscribe  its  sphere 
of  action  beforehand,  gradually  to  diminish  its  pre- 
rogatives, and  to  accustom  the  people  to  live  without  its 
protection.  Nothing,  however,  is  further  from  the  de- 
signs of  the  republicans  of  Europe  than  this  course  :  as 
many  of  them  only  owe  their  hatred  of  tyranny  to  the 
sufferings  which  they  have  personally  undergone,  the 
extent  of  the  executive  power  does  not  excite  their 
hostility,  and  they  only  attack  its  origin  without  per- 
ceiving how  nearly  the  two  things  are  connected. 

Hitherto  no  citizen  has  shown  any  disposition  to  ex- 
pose his  honour  and  his  life  in  order  to  become  the 
President  of  the  United  States ;  because  the  power  of 
that  office  is  temporary,  limited,  and  subordinate.  The 
prize  of  fortune  must  be  great  to  encourage  adventurers 


145 

in  so  desperate  a  game.  No  candidate  has  as  yet  been 
able  to  arouse  the  dangerous  enthusiasm  or  the  passion- 
ate sympathies  of  the  people  in  his  favour,  for  the  very 
simple  reason,  that  when  he  is  at  the  head  of  the 
Government  he  has  but  little  power,  but  little  wealth, 
and  but  little  glory  to  share  amongst  his  friends ;  and 
his  influence  in  the  State  is  too  small  for  the  success  or 
the  ruin  of  a  faction  to  depend  upon  the  elevation  of  an 
individual  to  power. 

The  great  advantage  of  hereditary  monarchies  is,  that 
as  the  private  interest  of  a  family  is  always  intimately 
connected  with  the  interests  of  the  State,  the  executive 
government  is  never  suspended  for  a  single  instant ;  and 
if  the  affairs  of  a  monarchy  are  not  better  conducted  than 
those  of  a  republic,  at  least  there  is  always  some  one  to 
conduct  them,  well  or  ill,  according  to  his  capacity.  In 
elective  States,  on  the  contrary,  the  wheels  of  govern- 
ment cease  to  act,  as  it  were  of  their  owrn  accord,  at  the 
approach  of  an  election,  and  even  for  some  time  previous 
to  that  event.  The  laws  may  indeed  accelerate  the  ope- 
ration of  the  election,  which  may  be  conducted  with 
such  simplicity  and  rapidity  that  the  seat  of  power  will 
never  be  left  vacant ;  but,  notwithstanding  these  precau- 
tions, a  break  necessarily  occurs  in  the  minds  of  the 
people. 

At  the  approach  of  an  election  the  head  of  the  execu- 
tive government  is  wholly  occupied  by  the  coming  strug- 
gle ;  his  future  plans  are  doubtful ;  he  can  undertake 
nothing  new,  and  he  will  only  prosecute  with  indiffer- 
ence those  designs  which  another  will  perhaps  termi- 
nate. "  I  am  so  near  the  time  of  my  retirement  from 
office/'  said  President  Jefferson  on  the  21st  of  January, 
1809,  (six  weeks  before  the  election,)  "that  I  feel  no 
passion,  I  take  no  part,  I  express  no  sentiment.  It  ap- 
pears to  me  just  to  leave  to  my  successor  the  commence- 

VOL.  i.  H 


146 

ment  of  those  measures  which  he  will  have  to  prosecute, 
and  for  which  he  will  be  responsible." 

On  the  other  hand,  the  eyes  of  the  nation  are  cen- 
tred on  a  single  point ;  all  are  watching  the  gradual 
birth  of  so  important  an  event.  The  wider  the  influ- 
ence of  the  executive  power  extends,  the  greater  and 
the  more  necessary  is  its  constant  action,  the  more  fatal 
is  the  term  of  suspense ;  and  a  nation  which  is  accus- 
tomed to  the  government,  or,  still  more,  one  used  to  the 
administrative  protection  of  a  powerful  executive  autho- 
rity, would  be  infallibly  convulsed  by  an  election  of  this 
kind.  In  the  United  States  the  action  of  the  Govern- 
ment may  be  slackened  with  impunity,  because  it  is 
always  weak  and  circumscribed. 

One  of  the  principal  vices  of  the  elective  system  is, 
that  it  always  introduces  a  certain  degree  of  instability 
into  the  internal  and  external  policy  of  the  State.  But 
this  disadvantage  is  less  sensibly  felt  if  the  share  of 
power  vested  in  the  elected  magistrate  is  small.  In 
Rome  the  principles  of  the  Government  underwent  no 
variation,  although  the  Consuls  were  changed  every 
year,  because  the  Senate,  which  was  an  hereditary  as- 
sembly, possessed  the  directing  authority.  If  the  elec- 
tive system  wrere  adopted  in  Europe,  the  condition  of 
most  of  the  monarchical  States  would  be  changed  at 
every  new  election.  In  America  the  President  exer- 
cises a  certain  influence  on  State  affairs,  but  he  does 
not  conduct  them ;  the  preponderating  power  is  vested 
in  the  representatives  of  the  wrhole  nation.  The  politi- 
cal maxims  of  the  country  depend  therefore  on  the  mass 
of  the  people,  not  on  the  President  alone ;  and  conse- 
quently in  America  the  elective  system  has  no  very  pre- 
judicial influence  on  the  fixed  principles  of  the  Govern- 
ment. But  the  want  of  fixed  principles  is  an  evil  so 
inherent  in  the  elective  system,  that  it  is  still  extremely 


147 

perceptible  in  the  narrow  sphere  to  which  the  authority 
of  the  President  extends. 

The  Americans  have  admitted  that  the  head  of  the 
executive  power,  who  has  to  bear  the  wrhole  responsi- 
bility of  the  duties  he  is  called  upon  to  fulfill,  ought  to 
be  empowered  to  choose  his  own  agents,  and  to  remove 
them  at  pleasure :  the  legislative  bodies  watch  the  con- 
duct of  the  President  more  than  they  direct  it.     The 
consequence  of  this  arrangement  is,  that  at  every  new 
election  the  fate  of  all  the  Federal  public  officers  is  in 
suspense.     Mr.  Quincy  Adams,  on  his  entry  into  office, 
discharged  the  majority  of  the  individuals  who  had  been 
appointed  by  his  predecessor :  and  I  am  not  aware  that 
General  Jackson  allowed  a  single  removeable  function- 
ary employed  in  the  Federal  service  to  retain  his  place 
beyond  the  first  year  which  succeeded  his  election.  --""It 
is  sometimes  made  a  subject  of  complaint,  that  in  the 
constitutional  monarchies   of  Europe  the  fate  of  the 
humbler  servants  of  an  Administration  depends  upon 
that  of  the  ministers.     But  in  elective  governments  this 
evil  is  far  greater.     In  a  constitutional  monarchy  suc- 
cessive ministries  are  rapidly  formed ;  but  as  the  prin- 
cipal representative  of  the  executive  power  does  not 
change,  the  spirit  of  innovation  is  kept  within  bounds ; 
the  changes  which  take  place  are  in  the  details  rather 
than  in  the  principles  of  the  administrative  system :  but 
to  substitute  one  system  for  another,  as  is  done  in  Ame- 
rica every  four  years  by  law,  is  to  cause  a  sort  of  revo- 
lution.    As  to  the  misfortunes  which  may  fall  upon  in- 
dividuals in  consequence  of  this  state  of  things,  it  must 
be  allowed  that  the  uncertain  situation  ,of  the  public 
officers  is  less  fraught  with  evil  consequences  in  Ame- 
rica than  elsewhere.     It  is  so  easy  to  acquire  an  inde- 
pendent position  in  the  United  States,  that  the  public 

H  2 


148 

officer  who  loses  his  place  may  be  deprived  of  the  com- 
forts of  life,  but  not  of  the  means  of  subsistence. 

I  remarked  at  the  beginning  of  this  chapter  that  the 
dangers  of  the  elective  system  applied  to  the  head  of  the 
State,  are  augmented  or  decreased  by  the  peculiar  cir- 
cumstances of  the  people  which  adopts  it.  However 
the  functions  of  the  executive  power  may  be  restricted, 
it  must  always  exercise  a  great  influence  upon  the  foreign 
policy  of  the  country,  for  a  negotiation  cannot  be  opened 
or  successfully  carried  on  otherwise  than  by  a  single 
agent.  The  more  precarious  and  the  more  perilous  the 
position  of  a  people  becomes,  the  more  absolute  is  the 
want  of  a  fixed  and  consistent  external  policy,  and  the 
more  dangerous  does  the  elective  system  of  the  chief 
magistrate  become.  The  policy  of  the  Americans  in 
relation  to  the  whole  world  is  exceedingly  simple ;  and 
it  may  almost  be  said  that  no  country  stands  in  need  of 
them,  nor  do  they  require  the  cooperation  of  any  other 
people.  Their  independence  is  never  threatened.  In 
their  present  condition,  therefore,  the  functions  of  the 
executive  power  are  no  less  limited  by  circumstances 
than  by  the  laws ;  and  the  President  may  frequently 
change  his  line  of  policy  without  involving  the  State  in 
difficulty  or  destruction. 

Whatever  the  prerogatives  of  the  executive  power 
may  be,  the  period  which  immediately  precedes  an  elec- 
tion, and  the  moment  of  its  duration,  must  always  be 
considered  as  a  national  crisis,  which  is  perilous  in  pro- 
portion to  the  internal  embarrassments  and  the  external 
dangers  of  the  country.  Few  of  the  nations  of  Europe 
could  escape  the  calamities  of  anarchy  or  of  conquest, 
every  time  they  might  have  to  elect  a  new  sovereign. 
In  America  society  is  so  constituted  that  it  can  stand 
without  assistance  upon  its  own  basis ;  nothing  is  to  be 


149 

feared  from  the  pressure  of  external  dangers;  and  the 
election  of  the  President  is  a  cause  of  agitation,  but 
not  of  ruin. 


MODE    OF    ELECTION. 

Skill  of  the  American  legislators  shown  in  the  mode  of  election 
adopted  by  them. — Creation  of  a  special  electoral  body. — Separate 
votes  of  these  electors. — Case  in  which  the  House  of  Represen- 
tatives is  called  upon  to  ehoose  the  President. — Results  of  the 
twelve  elections  which  have  taken  place  since  the  Constitution  has 
been  established. 

BESIDES  the  dangers  which  are  inherent  in  the  system, 
many  other  difficulties  may  arise  from  the  mode  of  elec- 
tion, which  may  be  obviated  by  the  precaution  of  the 
legislator.  When  a  people  met  in  arms  on  some  public 
spot  to  choose  its  head,  it  was  exposed  to  all  the  chances 
of  civil  war  resulting  from  so  martial  a  mode  of  proceed- 
ing, besides  the  dangers  of  the  elective  system  in  itself. 
The  Polish  laws,  which  subjected  the  election  of  the 
sovereign  to  the  veto  of  a  single  individual,  suggested  the 
murder  of  that  individual,  or  prepared  the  way  to 
anarchy. 

In  the  examination  of  the  institutions,  and  the  po- 
litical as  well  as  the  social  condition  of  the  United  States, 
we  are  struck  by  the  admirable  harmony  of  the  gifts  of 
fortune  and  the  efforts  of  man.  That  nation  possessed 
two  of  the  main  causes  of  internal  peace ;  it  was  a  new 
country,  but  it  was  inhabited  by  a  people  grown  old 
in  the  exercise  of  freedom.  America  had  no  hostile 
neighbours  to  dread ;  and  the  American  legislators, 
profiting  by  these  favourable  circumstances,  created  a 
weak  and  subordinate  executive  power,  which  could 
without  danger  be  made  elective. 


150 

It  then  only  remained  for  them  to  choose  the  least 
dangerous  of  the  various  modes  of  election ;  and  the  rules 
which  they  laid  down  upon  this  point  admirably  complete 
the  securities  which  the  physical  and  political  constitu- 
tion of  the  country  already  afforded.  Their  object  was 
to  find  the  mode  of  election  which  would  best  express 
the  choice  of  the  people  with  the  least  possible  excite- 
ment and  suspense.  It  was  admitted  in  the  first  place 
that  the  simple  majority  should  be  decisive;  but  the 
difficulty  was  to  obtain  this  majority  without  an  interval 
of  delay,  which  it  was  most  important  to  avoid.  It 
rarely  happens  that  an  individual  can  at  once  collect  the 
majority  of  the  suffrages  of  a  great  people;  and  this 
difficulty  is  enhanced  in  a  republic  of  confederate  States, 
where  local  influences  are  apt  to  preponderate.  The 
means  by  which  it  was  proposed  to  obviate  this  second 
obstacle  wras  to  delegate  the  electoral  powers  of  the 
nation  to  a  body  of  representatives.  This  mode  of  elec- 
tion rendered  a  majority  more  probable ;  for  the  fewer 
the  electors  are,  the  greater  is  the  chance  of  their  coming 
to  a  final  decision.  It  also  offered  an  additional  proba- 
bility of  a  judicious  choice.  It  then  remained  to  be 
decided  whether  this  right  of  election  was  to  be  entrusted 
to  the  legislative  body,  the  habitual  representative  as- 
sembly of  the  nation,  or  whether  an  electoral  assembly 
should  be  formed  for  the  express  purpose  of  proceeding 
to  the  nomination  of  a  President.  The  Americans  chose 
the  latter  alternative,  from  a  belief  that  the  individuals 
who  were  returned  to  make  the  laws  were  incompetent 
to  represent  the  wishes  of  the  nation  in  the  election  of 
its  chief  magistrate ;  and  that  as  they  are  chosen  for  more 
than  a  year,  the  constituency  they  represented  might 
have  changed  its  opinion  in  that  time.  It  was  thought 
that  if  the  legislature  was  empowered  to  elect  the  head 
of  the  executive  power,  its  members  would,  for  some 


151 

time  before  the  election,  be  exposed  to  the  manoeuvres 
of  corruption  and  the  tricks  of  intrigue ;  whereas  the 
special  electors  would,  like  a  jury,  remain  mixed  up 
with  the  crowd  till  the  day  of  action,  when  they  would 
appear  for  the  sole  purpose  of  giving  their  votes. 

It  was  therefore  established  that  every  State  should 
name  a  certain  number  of  electors*,  who  in  their  turn 
should  elect  the  President ;  and  as  it  had  been  observed 
that  the  assemblies  to  which  the  choice  of  a  chief  ma- 
gistrate had  been  entrusted  in  elective  countries,  inevi- 
tably became  the  centres  of  passion  and  of  cabal ;  that 
they  sometimes  usurped  an  authority  which  did  not 
belong  to  them;  and  that  their  proceedings,  or  the 
uncertainty  which  resulted  from  them,  were  sometimes 
prolonged  so  much  as  to  endanger  the  welfare  of  the 
State,  it  was  determined  that  the  electors  should  all  vote 
upon  the  same  day,  without  being  convoked  to  the  same 
placef.  This  double  election  rendered  a  majority 
probable,  though  not  certain  ;  for  it  was  possible  that  as 
many  differences  might  exist  between  the  electors  as 
between  their  constituents.  In  this  case  it  Avas  necessary 
to  have  recourse  to  one  of  three  measures;  either  to 
appoint  ne\v  electors,  or  to  consult  a  second  time  those 
already  appointed,  or  to  defer  the  election  to  another 
authority.  The  first  two  of  these  alternatives,  independ- 
ently of  the  uncertainty  of  their  results,  were  likely  to 
delay  the  final  decision,  and  to  perpetuate  an  agitation 
which  must  always  be  accompanied  with  danger.  The 
third  expedient  was  therefore  adopted,  and  it  was  agreed 
that  the  votes  should  be  transmitted  sealed  to  the 

*  As  many  as  it  sends  members  to  Congress.  The  number  of 
electors  at  the  election  of  1833  was  288.  (See  The  National  Calen- 
dar, 1833.) 

f  The  electors  of  the  same  State  assemble,  but  they  transmit  to  the 
central  Government  the  list  of  their  individual  votes,  and  not  the 
mere  result  of  the  vote  of  the  majority. 


132 

President  of  the  Senate,  and  that  they  should  be  opened 
and  counted  in  the  presence  of  the  Senate  and  the 
House  of  Representatives.  If  none  of  the  candidates 
has  a  majority,  the  House  of  Representatives  then  pro- 
ceeds immediately  to  elect  the  President ;  but  with  the 
condition  that  it  must  fix  upon  one  of  the  three  candi- 
dates who  have  the  highest  numbers*. 

Thus  it  is  only  in  case  of  an  event  which  cannot 
often  happen,  and  which  can  never  be  foreseen,  that  the 
election  is  entrusted  to  the  ordinary  representatives  of 
the  nation ;  and  even  then  they  are  obliged  to  choose 
a  citizen  who  has  already  been  designated  by  a  po\\  erful 
minority  of  the  special  electors.  It  is  by  this  happy 
expedient  that  the  respect  which  is  due  to  the  popular 
voice  is  combined  with  the  utmost  celerity  of  execution, 
and  those  precautions  wiiich  the  peace  of  the  country 
demands.  But  the  decision  of  the  question  by  the 
House  of  Representatives  does  not  necessarily  offer  an 
immediate  solution  of  the  difficulty,  for  the  majority  of 
that  assembly  may  still  be  doubtful,  and  in  this  case  the 
Constitution  prescribes  no  remedy.  Nevertheless,  by 
restricting  the  number  of  candidates  to  three,  and  by 
referring  the  matter  to  the  judgement  of  an  enlightened 
public  body,  it  has  smoothed  all  the  obstacles  f  which 
are  not  inherent  in  the  elective  system. 

In  the  forty-four  years  which  have  elapsed  since  the 
promulgation  of  the  Federal  Constitution,  the  United 


*  In  this  case  it  is  the  majority  of  the  States,  and  not  the  majority 
of  the  members,  which  decides  the  question  ;  so  that  New  York  has 
not  more  influence  in  the  debate  than  Rhode  Island.  Thus  the  citi- 
zens of  the  Union  are  first  consulted  as  members  of  one  and  the  same 
community  ;  and,  if  they  cannot  agree,  recourse  is  had  to  the  division 
of  the  States,  each  of  which  has  a  separate  and  independent  vote. 
This  is  one  of  the  singularities  of  the  Federal  Constitution  which  can 
only  be  explained  by  the  jar  of  conflicting  interests. 

t  Jefferson,  in  1801,  was  not  elected  until  the  36th  time  of  bal- 
loting. 


153 

States  have  twelve  times  chosen  a  President.  Ten  of 
these  elections  took  place  simultaneously  by  the  votes  of 
the  special  electors  in  the  different  States.  The  House 
of  Representatives  has  only  twice  exercised  its  condi- 
tional privilege  of  deciding  in  cases  of  uncertainty :  the 
first  time  was  at  the  election  of  Mr.  Jefferson  in  1801  ; 
the  second  was  in  1825,  when  Mr.  Quincy  Adams  was 
named. 


CRISIS    OF    THE    ELECTION. 

The  Election  may  be  considered  as  a  national  crisis. — Why? — 
Passions  of  the  people. — Anxiety  of  the  President. — Calm  which 
succeeds  the  agitation  of  the  election. 

I  HAVE  shown  what  the  circumstances  are  which 
favoured  the  adoption  of  the  elective  system  in  the 
United  States,  and  what  precautions  were  taken  by  the 
legislators  to  obviate  its  dangers.  The  Americans  are 
accustomed  to  all  kinds  of  elections ;  and  they  know7  by 
experience  the  utmost  degree  of  excitement  which  is 
compatible  with  security.  The  vast  extent  of  the  coun- 
try and  the  dissemination  of  the  inhabitants  render  a 
collision  between  parties  less  probable  and  less  dangerous 
there  than  elsewhere.  The  political  circumstances  under 
which  the  elections  have  hitherto  been  carried  on  have 
presented  no  real  embarrassments  to  the  nation. 

Nevertheless,  the  epoch  of  the  election  of  a  President 
of  the  United  States  may  be  considered  as  a  crisis  in  the 
affairs  of  the  nation.  The  influence  which  he  exercises 
on  public  business  is  no  doubt  feeble  and  indirect ;  but 
the  choice  of  the  President,  which  is  of  small  importance 
to  each  individual  citizen,  concerns  the  citizens  collec- 
tively ;  and  however  trifling  an  interest  may  be,  it 
assumes  a  great  degree  of  importance  as  soon  as  it  be- 

H  5 


154 

comes  general.  The  President  possesses  but  few  means  of 
rewarding  his  supporters  in  comparison  to  the  kings  of 
Europe,  but  the  places  which  are  at  his  disposal  are 
sufficiently  numerous  to  interest,  directly  or  indirectly, 
several  thousand  electors  in  his  success.  Moreover 
political  parties,  in  the  United  States  as  well  as  elsewhere, 
are  led  to  rally  round  an  individual,  in  order  to  acquire 
a  more  tangible  shape  in  the  eyes  of  the  crowd,  and  the 
name  of  the  candidate  for  the  Presidency  is  put  forward 
as  the  symbol  and  personification  of  their  theories.  For 
these  reasons  parties  are  strongly  interested  in  gaining 
the  election,  not  so  much  with  a  view  to  the  triumph  of 
their  principles  under  the  auspices  of  the  President 
elected,  as  to  show,  by  the  majority  which  returned  him, 
the  strength  of  the  supporters  of  those  principles. 

For  a  long  while  before  the  appointed  time  is  at  hand, 
the  election  becomes  the  most  important  and  the  all- 
engrossing  topic  of  discussion.  The  ardour  of  faction  is 
redoubled;  and  all  the  artificial  passions  which  the 
imagination  can  create  in  the  bosom  of  a  happy  and 
peaceful  land  are  agitated  and  brought  to  light.  The 
President,  on  the  other  hand,  is  absorbed  by  the 
cares  of  self-defence.  He  no  longer  governs  for  the 
interest  of  the  State,  but  for  that  of  his  re-election  ;  he 
does  homage  to  the  majority,  and  instead  of  checking  its 
passions,  as  his  duty  commands  him  to  do,  he  frequently 
courts  its  worst  caprices.  As  the  election  draws  near, 
the  activity  of  intrigue  and  the  agitation  of  the  populace 
increase ;  the  citizens  are  divided  into  several  camps, 
each  of  which  assumes  the  name  of  its  favourite  can- 
didate ;  the  whole  nation  gloAvs  with  feverish  excitement; 
the  election  is  the  daily  theme  of  the  public  papers,  the 
subject  of  private  conversation,  the  end  of  every  thought 
and  every  action,  the  sole  interest  of  the  present.  As 
soon  as  the  choice  is  determined,  this  ardour  is  dispelled; 


155 

and  as  a  calmer  season  returns,  the  current  of  the  State, 
which  had  nearly  broken  its  banks,  sinks  to  its  usual 
level:  but  who  can  refrain  from  astonishment  at  the 
causes  of  the  storm  ? 


RE-ELECTION    OF    THE    PRESIDENT. 

When  the  head  of  the  executive  power  is  re-eligible,  it  is  the  State 
which  is  the  source  of  intrigue  and  corruption. — The  desire  of 
being  re-elected  the  chief  aim  of  a  President  of  the  United  States. — 
Disadvantage  of  the  system  peculiar  to  America. — The  natural 
evil  of  democracy  is  that  it  subordinates  all  authority  to  the  slightest 
desires  of  the  majority. — The  re-election  of  the  President  encou- 
rages this  evil. 

IT  may  be  asked  whether  the  legislators  of  the  United 
States  did  right  or  wrong  in  allowing  the  re-election  of 
the  President.  It  seems  at  first  sight  contrary  to  all 
reason  to  prevent  the  head  of  the  executive  power  from 
being  elected  a  second  time.  The  influence  which  the 
talents  and  the  character  of  a  single  individual  may 
exercise  upon  the  fate  of  a  whole  people,  especially  in 
critical  circumstances  or  arduous  times,  is  well  known: 
a  law  preventing  the  re-election  of  the  chief  magistrate 
would  deprive  the  citizens  of  the  surest  pledge  of  the 
prosperity  and  the  security  of  the  commonwealth ;  and, 
by  a  singular  inconsistency,  a  man  would  be  excluded 
from  the  government  at  -the  very  time  when  he  had 
shown  his  ability  in  conducting  its  affairs. 

But  if  these  arguments  are  strong,  perhaps  still  more 
powerful  reasons  may  be  advanced  against  them.  In- 
trigue and  corruption  are  the  natural  defects  of  elective 
government ;  but  -\yhen  the  head  of  the  State  can  be  re- 
elected,  these  evils  rise  to  a  great  height,  and  compromise 
the  very  existence  of  the  country.  When  a  simple 


156 

candidate  seeks  to  rise  by  intrigue,  his  manoeuvres  must 
necessarily  be  limited  to  a  narrow  sphere ;  but  when  the 
chief  magistrate  enters  the  list,  he  borrows  the  strength 
of  the  Government  for  his  own  purposes.  In  the  former 
case  the  feeble  resources  of  an  individual  are  in  action ; 
in  the  latter,  the  State  itself,  with  all  its  immense 
influence,  is  busied  in  the  work  of  corruption  and  cabal. 
The  private  citizen,  who  employs  the  most  immoral 
practices  to  acquire  power,  can  only  act  in  a  manner 
indirectly  prejudicial  to  the  public  prosperity.  But  if 
the  representative  of  the  executive  descends  into  the  lists, 
the  cares  of  government  dwindle  into  second-rate  im- 
portance, and  the  success  of  his  election  is  his  first 
concern.  All  laws  and  negotiations  are  then  to  him 
nothing  more  than  electioneering  schemes;  places  become 
the  reward  of  services  rendered,  not  to  the  nation,  but 
to  its  chief;  and  the  influence  of  the  Government,  if 
not  injurious  to  the  country,  is  at  least  no  longer  be- 
neficial to  the  community  for  which  it  was  created. 

It  is  impossible  to  consider  the  ordinary  course  of 
affairs  in  the  United  States  without  perceiving  that  the 
desire  of  being  re-elected  is  the  chief  aim  of  the  Presi- 
dent ;  that  his  whole  administration,  and  even  his  most 
indifferent  measures,  tend  to  this  object;  and  that,  as 
the  crisis  approaches,  his  personal  interest  takes  the 
place  of  his  interest  in  the  public  good.  The  principle 
of  re-eligibility  renders  the  corrupt  influence  of  elective 
governments  still  more  extensive  and  pernicious.  It 
tends  to  degrade  the  political  morality  of  the  people, 
and  to  substitute  adroitness  for  patriotism. 

In  America  it  exercises  a  still  more  fatal  influence  on 
the  sources  of  national  existence.  Every  government 
seems  to  be  afflicted  by  some  evil  inherent  in  its  nature, 
and  the  genius  of  the  legislator  is  shown  in  eluding  its 
attacks.  A  State  may  survive  the  influence  of  a  host  of 


157 

bad  laws,  and  the  mischief  they  cause  is  frequently 
exaggerated ;  but  a  law  which  encourages  the  growth  of 
the  canker  within  must  prove  fatal  in  the  end,  although 
its  bad  consequences  may  not  be  immediately  perceived. 

The  principle  of  destruction  in  absolute  monarchies 
lies  in  the  excessive  and  unreasonable  extension  of  the 
prerogative  of  the  Crown ;  and  a  measure  tending  to 
remove  the  constitutional  provisions  which  counter- 
balance this  influence  would  be  radically  bad,  even  if 
its  consequences  should  long  appear  to  be  imperceptible. 
By  a  parity  of  reasoning,  in  countries  governed  by  a 
democracy,  where  the  people  is  perpetually  drawing  all 
authority  to  itself,  the  laws  which  increase  or  accelerate 
its  action  are  the  direct  assailants  of  the  very  principle 
of  the  Government. 

The  greatest  proof  of  the  ability  of  the  American 
legislators  is,  that  they  clearly  discerned  this  truth,  and 
that  they  had  the  courage  to  act  up  to  it.  They  con- 
ceived that  a  certain  authority  above  the  body  of  the 
people  was  necessary,  which  should  enjoy  a  degree  of 
independence,  without  however  being  entirely  beyond 
the  popular  control ;  an  authority  which  would  be  forced 
to  comply  with  the  permanent  determinations  of  the 
majority,  but  which  would  be  able  to  resist  its  caprices, 
and  to  refuse  its  most  dangerous  demands.  To  this 
end  they  centred  the  whole  executive  power  of  the  nation 
in  a  single  arm  ;  they  granted  extensive  prerogatives  to 
the  President,  and  they  armed  him  with  the  veto  to  re- 
sist the  encroachments  of  the  legislature. 

But  by  introducing  the  principle  of  re-election  they 
partly  destroyed  their  work  ;  and  they  rendered  the 
President  but  little  inclined  to  exert  the  great  power 
they  had  vested  in  his  hands.  If  ineligible  a  second 
time,  the  President  would  be  far  from  independent  of 
the  people,  for  his  responsibility  would  not  be  lessened ; 


158 

but  the  favour  of  the  people  would  not  be  so  necessaiy 
to  him  as  to  induce  him  to  court  it  by  humouring  its 
desires.  If  re-eligible,  (and  this  is  more  especially  true 
at  the  present  day,  when  political  morality  is  relaxed, 
and  when  great  men  are  rare,)  the  President  of  the 
United  States  becomes  an  easy  tool  in  the  hands  of  the 
majority.  He  adopts  its  likings  and  its  animosities,  he 
hastens  to  anticipate  its  wishes,  he  forestalls  its  com- 
plaints, he  yields  to  its  idlest  cravings,  and  instead  of 
guiding  it,  as  the  legislature  intended  that  he  should  do, 
he  is  ever  ready  to  follow  its  bidding.  Thus,  in  order 
not  to  deprive  the  State  of  the  talents  of  an  individual, 
those  talents  have  been  rendered  almost  useless ;  and  to 
reserve  an  expedient  for  extraordinary  perils  the  country 
has  been  exposed  to  daily  dangers. 


FEDERAL,    COURTS*. 

Political  importance  of  the  judiciary  in  the  United  States. — Difficulty 
of  treating  this  subject. — Utility  of  judicial  power  in  confedera- 
tions.— What  tribunals  could  be  introduced  into  the  Union. — 
Necessity  of  establishing  federal  courts  of  justice. — Organization 
of  the  national  judiciary. — The  Supreme  Court. —  In  what  it  differs 
from  all  known  tribunals. 

I  HAVE  inquired  into  the  legislative  and  executive  power 
of  the  Union,  and  the  judicial  power  now  remains  to  be 

*  See  Chapter  VI.,  entitled  'Judicial  Power  in  the  United  States.' 
This  chapter  explains  the  general  principles  of  the  American  theory 
of  judicial  institutions.  See  also  the  Federal  Constitution,  Art.  3. 
See  the  Federalist,  Nos.  78 — 83,  inclusive  ;  and  a  work  entitled 
'  Constitutional  Law,  being  a  View  of  the  Practice  and  Jurisdiction 
of  the  Courts  of  the  United  States,  by  Thomas  Sergeant.'  See  Story, 
pp.  134,  162,  489,  511,  581,  668  ;  and  the  organic  law  of  the  24th 
September,  17S9,  in  the  Collection  of  the  Laws  of  the  United  States, 
by  Story,  vol.  i.  p.  53. 


159 

examined ;  but  in  this  place  I  cannot  conceal  my  fears 
from  the  reader.  Judicial  institutions  exercise  a  great 
influence  on  the  condition  of  the  Anglo-Americans,  and 
they  occupy  a  prominent  place  amongst  what  are  properly 
called  political  institutions :  in  this  respect  they  are  pe- 
culiarly deserving  of  our  attention.  But  I  am  at  loss  to 
explain  the  political  action  of  the  American  tribunals 
without  entering  into  some  technical  details  on  their 
Constitution  and  their  forms  of  proceeding;  and  I  know 
not  how  to  descend  to  these  minutiae  without  wearying 
the  curiosity  of  the  reader  by  the  natural  aridity  of  the 
subject,  or  without  risking  to  fall  into  obscurity  through 
a  desire  to  be  succinct.  I  can  scarcely  hope  to  escape 
these  various  evils ;  for  if  I  appear  too  lengthy  to  a  man 
of  the  world,  a  lawyer  may  on  the  other  hand  complain 
of  my  brevity.  But  these  are  the  natural  disadvantages 
of  my  subject,  and  more  especially  of  the  point  which  I 
am  about  to  discuss. 

The  great  difficulty  was,  not  to  devise  the  Constitu- 
tion of  the  Federal  Government,  but  to  find  out  a  method 
of  enforcing  its  laws.  Governments  have  in  general  but 
two  means  of  overcoming  the  opposition  of  the  people 
they  govern,  viz.  the  physical  force  which  is  at  their  own 
disposal,  and  the  moral  force  which  they  derive  from  the 
decisions  of  the  courts  of  justice. 

A  government  which  should  have  no  other  means  of 
exacting  obedience  than  open  war,  must  be  very  near 
its  ruin ;  for  one  of  two  alternatives  would  then  probably 
occur:  if  its  authority  was  small,  and  its  character 
temperate,  it  would  not  resort  to  violence  till  the  last 
extremity,  and  it  would  connive  at  a  number  of  partial 
acts  of  insubordination,  in  which  case  the  State  would 
gradually  fall  into  anarchy ;  if  it  was  enterprising  and 
powerful,  it  would  perpetually  have  recourse  to  its 
physical  strength,  and  would  speedily  degenerate  into 


160 

a  military  despotism.     So  that  its  activity  would  not  be 
less  prejudicial  to  the  community  than  its  inaction. 

The  great  end  of  justice  is  to  substitute  the  notion 
of  right  for  that  of  violence ;  and  to  place  a  legal  barrier 
between  the  power  of  the  Government  and  the  use  of 
physical  force.  The  authority  which  is  awarded  to  the 
intervention  of  a  court  of  justice  by  the  general  opinion 
of  mankind  is  so  surprisingly  great,  that  it  clings  to  the 
mere  formalities  of  justice,  and  gives  a  bodily  influence 
to  the  shadow  of  the  law.  The  moral  force  which  courts 
of  justice  possess  renders  the  introduction  of  physical 
force  exceedingly  rare,  and  is  very  frequently  substituted 
for  it ;  but  if  the  latter  proves  to  be  indispensable,  its 
power  is  doubled  by  the  association  of  the  idea  of  law. 

A  Federal  Government  stands  in  greater  need  of  the 
support  of  judicial  institutions  than  any  other,  because 
it  is  naturally  weak,  and  exposed  to  formidable  opposi- 
tion*. If  it  were  always  obliged  to  resort  to  violence 
in  the  first  instance,  it  could  not  fulfill  its  task.  The 
Union,  therefore,  required  a  national  judiciary  to  enforce 
the  obedience  of  the  citizens  to  the  laws,  and  to  repel 
the  attacks  which  might  be  directed  against  them.  TJie 
question  then  remained  as  to  what  tribunals  were  to 
exercise  these  privileges ;  were  they  to  be  entrusted  to 
the  courts  of  justice  which  were  already  organized  in 
every  State  ?  or  was  it  necessary  to  create  federal  courts? 
It  may  easily  be  proved  that  the  Union  could  not  adapt 
the  judicial  power  of  the  States  to  its  wants.  The 
separation  of  the  judiciary  from  the  administrative  power 
of  the  State  no  doubt  affects  the  security  of  every  citizen, 

*  Federal  laws  are  those  which  most  require  courts  of  justice,  and 
those  at  the  same  time  which  have  most  rarely  established  them. 
The  reason  is  that  confederations  have  usually  been  formed  by  inde- 
pendent States,  which  entertained  no  real  intention  of  obeying  the 
central  Government,  and  which  very  readily  ceded  the  right  of  com- 
mand to  the  Federal  executive,  and  very  prudently  reserved  the  right 
of  non-compliance  to  themselves. 


161 

and  the  liberty  of  all.  But  it  is  no  less  important  to 
the  existence  of  the  nation  that  these  several  powers 
should  have  the  same  origin,  should  follow  the  same 
principles,  and  act  in  the  same  sphere  ;  in  a  word,  that 
they  should  be  correlative  and  homogeneous.  No  one, 
I  presume,  ever  suggested  the  advantage  of  trying 
offences  committed  in  France,  by  a  foreign  court  of 
justice,  in  order  to  ensure  the  impartiality  of  the  judges. 
The  Americans  form  one  people  in  relation  to  their 
Federal  Government ;  but  in  the  bosom  of  this  people 
divers  political  bodies  have  been  allowed  to  subsist 
which  are  dependent  on  the  national  Government  in  a 
few  points,  and  independent  in  all  the  rest — which  have 
all  a  distinct  origin,  maxims  peculiar  to  themselves, 
and  special  means  of  carrying  on  their  affairs.  To 
entrust  the  execution  of  the  laws  of  the  Union  to  tribu- 
nals instituted  by  these  political  bodies,  would  be  to 
allow  foreign  judges  to  preside  over  the  nation.  Nay 
more,  not  only  is  each  State  foreign  to  the  Union  at 
large,  but  it  is  in  perpetual  opposition  to  the  common 
interests,  since  whatever  authority  the  Union  loses  turns 
to  the  advantage  of  the  States.  Thus  to  enforce  the 
laws  of  the  Union  by  means  of  the  tribunals  of  the 
States,  would  be  to  allow  not  only  foreign,  but  partial 
judges  to  preside  over  the  nation. 

But  the  number,  still  more  than  the  mere  character, 
of  the  tribunals  of  the  States  rendered  them  unfit  for 
the  service  of  the  nation.  When  the  Federal  Consti- 
tution was  formed,  there  were  already  thirteen  courts  of 
justice  in  the  United  States  which  decided  causes  without 
appeal.  That  number  is  now  increased  to  twenty-four. 
To  suppose  that  a  State  can  subsist,  when  its  funda- 
mental laws  may  be  subjected  to  four-and-twenty  dif- 
ferent interpretations  at  the  same  time,  is  to  advance  a 
proposition  alike  contrary  to  reason  and  to  experience. 


162 

The  American  legislators  therefore  agreed  to  create  a 
federal  judiciary  power  to  apply  the  laws  of  the  Union, 
and  to  determine  certain  questions  affecting  general 
interests,  which  were  carefully  determined  beforehand. 
The  entire  judicial  power  of  the  Union  was  centred  in 
one  tribunal,  which  was  denominated  the  Supreme 
Court  of  the  United  States.  But,  to  facilitate  the  ex- 
pedition of  business,  inferior  courts  were  appended  to 
it,  which  were  empowered  to  decide  causes  of  small 
importance  without  appeal,  and  with  appeal  causes  of 
more  magnitude.  The  members  of  the  Supreme  Court 
are  named  neither  by  the  people  nor  the  legislature,  but 
by  the  President  of  the  United  States,  acting  with  the 
advice  of  the  Senate.  In  order  to  render  them  inde- 
pendent of  the  other  authorities,  their  office  was  made 
inalienable;  and  it  was  determined  that  their  salary, 
when  once  fixed,  should  not  be  altered  by  the  legisla- 
ture*. It  was  easy  to  proclaim  the  principle  of  a 
Federal  judiciary,  but  difficulties  multiplied  when  the 
extent  of  its  jurisdiction  was  to  be  determined. 

*  The  Union  was  divided  into  districts,  in  each  of  which  a  resi- 
dent Federal  judge  was  appointed,  and  the  court  in  which  he  presided 
was  termed  a  'District  Court'.  Each  of  the  judges  of  the  Supreme 
Court  annually  visits  a  certain  portion  of  the  Republic,  in  order  to 
try  the  most  important  causes  upon  the  spot :  the  court  presided  over 
by  this  magistrate  is  styled  a  '  Circuit  Court'.  Lastly,  all  the  most 
serious  cases  of  litigation  are  brought  before  the  Supreme  Court, 
which  holds  a  solemn  session  once  a  year,  at  which  all  the  judges  of 
the  Circuit  courts  must  attend.  The  Jury  was  introduced  into  the 
Federal  courts  in  the  same  manner,  and  in  the  same  cases,  as  into  the 
courts  of  the  States. 

It  will  be  observed  that  no  analogy  exists  between  the  Supreme 
Court  of  the  United  States  and  the  French  Cour  de  Cassation,  since 
the  latter  only  hears  appeals.  The  Supreme  Court  decides  upon  the 
evidence  of  the  fact,  as  well  as  upon  the  law  of  the  case,  whereas  the 
Cour  de  Cassation  does  not  pronounce  a  decision  of  its  own,  but  refers 
the  cause  to  the  arbitration  of  another  tribunal. — See  the  law  of  the 
24th  September,  1789,  Laws  of  the  United  States,  by  Story,  vol.  i. 
p.  53. 


163 


MEANS    OF    DETERMINING    THE    JURISDICTION    OF 
THE  FEDERAL  COURTS. 

Difficulty  of  determining  the  jurisdiction  of  separate  courts  of  justice 
in  confederations.— The  courts  of  the  Union  obtained  the  right  of 
fixing  their  own  jurisdiction. — -In  what  respect  this  rule  attacks 
the  portion  of  sovereignty  reserved  to  the  several  States. — The 
sovereignty  of  these  States  restricted  by  the  laws,  and  the  inter- 
pretation of  the  laws. — Consequently,  the  danger  of  the  several 
States  is  more  apparent  than  real. 

As  the  Constitution  of  the  United  States  recognised 
two  distinct  powers,  in  presence  of  each  other,  repre- 
sented in  a  judicial  point  of  view  by  two  distinct  classes 
of  courts  of  justice,  the  utmost  care  which  could  be 
taken  in  denning  their  separate  jurisdictions  would  have 
been  insufficient  to  prevent  frequent  collisions  between 
those  tribunals.  The  question  then  arose.,  to  whom  the 
right  of  deciding  the  competency  of  each  court  was  to 
be  referred. 

In  nations  which  constitute  a  single  body  politic,  \vhen 
a  question  is  debated  between  twro  courts  relating  to  their 
mutual  jurisdiction,  a  third  tribunal  is  generally  within 
reach  to  decide  the  difference  ;  and  this  is  effected  with- 
out difficulty,  because  in  these  nations  the  questions  of 
judicial  competency  have  no  connexion  with  the  privi- 
leges of  the  national  supremacy.  But  it  was  impossible 
to  create  an  arbiter  between  a  superior  court  of  the  Union 
and  the  superior  court  of  a  separate  State  which  would 
not  belong  to  one  of  these  twro  classes.  It  was  therefore 
necessary  to  allow  one  of  these  courts  to  judge  its  own 
cause,  and  to  take  or  to  retain  cognizance  of  the  point 
which  was  contested.  To  grant  this  privilege  to  the 
different  courts  of  the  States,  would  have  been  to  destroy 
the  sovereignty  of  the  Union  de facto,  after  having  esta- 
blished it  dejure;  for  the  interpretation  of  the  Consti- 


164 

tution  would  soon  have  restored  that  portion  of  inde- 
pendence to  the  States  of  which  the  terms  of  that  act 
deprived  them.  The  object  of  the  creation  of  a  Federal 
tribunal  was  to  prevent  the  courts  of  the  States  from 
deciding  questions  affecting  the  national  interests  in  their 
own  department,  and  so  to  form  a  uniform  body  of  juris- 
prudence for  the  interpretation  of  the  laws  of  the  Union. 
This  end  would  not  have  been  accomplished  if  the  courts 
of  the  several  States  had  been  competent  to  decide  upon 
cas.es  in  their  separate  capacities,  from  which  they  were 
obliged  to  abstain  as  Federal  tribunals.  The  Supreme 
Court  of  the  United  States  was  therefore  invested  with 
the  right  of  determining  all  questions  of  jurisdiction*. 

This  was  a  severe  blow  upon  the  independence  of  the 
States,  which  was  thus  restricted  not  only  by  the  laws, 
but  by  the  interpretation  of  them ;  by  one  limit  which 
was  known,  and  by  another  which  was  dubious  ;  by  a 
rule  which  was  certain,  and  a  rule  which  was  arbitrary. 
It  is  true  the  Constitution  had  laid  down  the  precise  li- 
mits of  the  Federal  supremacy,  but  whenever  this  supre- 
macy is  contested  by  one  of  the  States,  a  Federal  tribu- 
nal decides  the  question.  Nevertheless,  the  dangers 
with  which  the  independence  of  the  States  was  threat- 
ened by  this  mode  of  proceeding  are  less  serious  than 
they  appeared  to  be.  We  shall  see  hereafter  that  in 
America  the  real  strength  of  the  country  is  vested  in  the 
provincial  far  more  than  in  the  Federal  Government. 
The  Federal  judges  are  conscious  of  the  relative  weak- 

*  In  order  to  diminish  the  numher  of  these  suits,  it  was  decided, 
that  in  a  great  many  Federal  causes  the  courts  of  the  States  should 
be  empowered  to  decide  conjointly  with  those  of  the  Union,  the  losing 
party  having  then  a  right  of  appeal  to  the  Supreme  Court  of  th« 
United  States.  The  Supreme  Court  of  Virginia  contested  the  right 
of  the  Supreme  Court  of  the  United  States  to  judge  an  appeal  from 
its  decisions,  but  unsuccessfully. — See  Kent's  Commentaries,  vol.  i. 
p.  300,  p.  370,  et  seq. ;  Story's  Commentaries,  p.  61G;  and  The  Or- 
ganic Law  of  the  United  States,  vol.  i.  p.  35. 


165 

ness  of  the  power  in  whose  name  they  act,  and  they  are 
more  inclined  to  abandon  a  right  of  jurisdiction  in  cases 
where  it  is  justly  their  own,  than  to  assert  a  privilege  to 
which  they  have  no  legal  claim. 


DIFFERENT  CASES  OF  JURISDICTION* 

The  matter  and  the  party  are  the  first  conditions  of  the  Federal  juris- 
diction.— Suits  in  which  ambassadors  are  engaged.-— -Suits  of  the 
Union. — Of  a  separate  State. — By  whom  tried.— Causes  resulting 
from  the  laws  of  the  Union. — Why  judged  by  the  Federal  tribunals. 
— Causes  relating  to  the  non-performance  of  contracts  tried  by  the 
Federal  courts. — Consequences  of  this  arrangement. 

AFTER  having  appointed  the  means  of  fixing  the  com- 
petency of  the  Federal  courts,  the  legislators  of  the  Union 
defined  the  cases  which  should  come  within  their  juris- 
diction. It  was  established,  on  the  one  hand,  that  cer- 
tain parties  must  always  be  brought  before  the  Federal 
courts,  without  any  regard  to  the  special  nature  of  the 
cause  ;  and,  on  the  other,  that  certain  causes  must  always 
be  brought  before  the  same  courts,  without  any  regard 
to  the  quality  of  the  parties  in  the  suit.  These  di- 
stinctions were  therefore  admitted  to  be  the  bases  of  the 
Federal  jurisdiction. 

Ambassadors  are  the  representatives  of  nations  in  a 
state  of  amity  with  the  Union,  and  whatever  concerns 
these  personages  concerns  in  some  degree  the  whole 
Union.  When  an  ambassador  is  a  party  in  a  suit,  that 
suit  affects  the  welfare  of  the  nation,  and  a  Federal  tri- 
bunal is  naturally  called  upon  to  decide  it. 

The  Union  itself  may  be  involved  in  legal  proceedings, 
and  in  this  case  it  wrould  be  alike  contrary  to  the  customs 
of  all  nations,  and  to  common  sense,  to  appeal  to  a  tri- 
bunal representing  any  other  sovereignty  than  its  own ; 


166 

the  Federal  courts,  therefore,  take  cognizance  of  these 
affairs. 

When  two  parties  belonging  to  two  different  States 
are  engaged  in  a  suit,  the  case  cannot  with  propriety  be 
brought  before  a  court  of  either  State.  The  surest  ex- 
pedient is  to  select  a  tribunal  like  that  of  the  Union, 
which  can  excite  the  suspicions  of  neither  party,  and 
which  offers  the  most  natural  as  well  as  the  most  certain 
remedy. 

When  the  two  parties  are  not  private  individuals, 
but  States,  an  important  political  consideration  is  added 
to  the  same  motive  of  equity.  The  quality  of  the  parties, 
in  this  case,  gives  a  national  importance  to  all  their  dis- 
putes ;  and  the  most  trifling  litigation  of  the  States  may 
be  said  to  involve  the  peace  of  the  whole  Union*. 

The  nature  of  the  cause  frequently  prescribes  the  rule 
of  competency.  Thus  all  the  questions  which  concern 
maritime  commerce  evidently  fall  under  the  cognizance 
of  the  Federal  tribunals  f.  Almost  all  these  questions 
are  connected  with  the  interpretation  of  the  law  of  na- 
tions ;  and  in  this  respect  they  essentially  interest  the 
Union  in  relation  to  foreign  powers.  Moreover,  as  the 
sea  is  not  included  within  the  limits  of  any  peculiar  ju- 
risdiction, the  national  courts  can  only  hear  causes  which 
originate  in  maritime  affairs. 

*  The  Constitution  also  says  that  the  Federal  courts  shall  decide 
"  controversies  between  a  State  and  the  citizens  of  another  State." 
And  here  a  most  important  question  of  a  constitutional  nature  arose, 
which  was,  whether  the  jurisdiction  given  by  the  Constitution  incases 
in  which  a  State  is  a  party,  extended  to  suits  brought  against  a  State 
as  well  as  by  it,  or  was  exclusively  confined  to  the  latter.  The  question 
was  most  elaborately  considered  in  the  case  of  Chisholme  v.  Georgia, 
and  was  decided  by  the  majority  of  the  Supreme  Court  in  the  affirma- 
tive. This  decision  created  general  alarm  among  the  States,  and  an 
amendment  was  proposed  and  ratified,  by  which  the  power  was  entirely 
taken  away  so  far  as  it  regards  suits  brought  against  a  State. — See 
Story's  Commentaries,  p.  624,  or  in  the  large  edition,  §  1677. 

f  As,  for  instance,  all  cases  of  piracy. 


167 

The  Constitution  comprises  under  one  head  almost  all 
the  cases  which  by  their  very  nature  come  within  the 
limits  of  the  Federal  courts.  The  rule  which  it  lays 
down  is  simple,  but  pregnant  with  an  entire  system  of 
ideas,  and  with  a  vast  multitude  of  facts.  It  declares 
that  the  judicial  power  of  the  Supreme  Court  shall  ex- 
tend to  all  cases  in  law  and  equity  arising  under  the 
laws  of  the  United  States. 

Two  examples  will  put  the  intention  of  the  legislator 
in  the  clearest  light : 

The  Constitution  prohibits  the  States  from  making 
laws  on  the  value  and  circulation  of  money.  If,  notwith- 
standing this  prohibition,  a  State  passes  a  law  of  this 
kind,  with  which  the  interested  parties  refuse  to  comply 
because  it  is  contrary  to  the  Constitution,  the  case  must 
come  before  a  Federal  court,  because  it  arises  under  the 
laws  of  the  United  States.  Again,  if  difficulties  arise  in 
the  levying  of  import  duties  which  have  been  voted  by 
Congress,  the  Federal  Court  must  decide  the  case,  be- 
cause it  arises  under  the  interpretation  of  a  law  of  the 
United  States. 

This  rule  is  in  perfect  accordance  with  the  fundamen- 
tal principles  of  the  Federal  Constitution.  The  Union, 
as  it  was  established  in  1789,  possesses,  it  is  true,  a  li- 
mited supremacy ;  but  it  was  intended  that  within  its 
limits  it  should  form  one  and  the  same  people*.  Within 
those  limits  the  Union  is  sovereign.  When  this  point 
is  established  and  admitted,  the  inference  is  easy ;  for  if 
it  be  acknowledged  that  the  United  States  constitute  one 
and  the  same  people  within  the  bounds  prescribed  by 
their  Constitution,  it  is  impossible  to  refuse  them  the 

*  This  principle  was  in  some  measure  restricted  by  the  introduction 
of  the  several  States  as  independent  powers  into  the  Senate,  and  by 
allowing  them  to  vote  separately  in  the  House  of  Representatives 
when  the  President  is  elected  by  that  body.  But  these  are  exceptions, 
and  the  contrary  principle  is  the  rule. 


168 

rights  which  belong  to  other  nations.  But  it  has  been 
allowed,  from  the  origin  of  society,  that  every  nation  has 
the  right  of  deciding  by  its  own  courts  those  questions 
which  concern  the  execution  of  its  own  laws.  To  this 
it  is  answered,  that  the  Union  is  in  so  singular  a  position, 
that  in  relation  to  some  matters  it  constitutes  a  people, 
and  that  in  relation  to  all  the  rest  it  is  a  nonentity.  But 
the  inference  to  be  drawn  is,  that  in  the  laws  relating  to 
these  matters  the  Union  possesses  all  the  rights  of  abso- 
lute sovereignty.  The  difficulty  is  to  know  what  these 
matters  are  ;  and  when  once  it  is  resolved,  (and  we  have 
shown  how  it  was  resolved,  in  speaking  of  the  means  of 
determining  the  jurisdiction  of  the  Federal  courts,)  no 
further  doubt  can  arise ;  for  as  soon  as  it  is  established 
that  a  suit  is  Federal,  that  is  to  say,  that  it  belongs  to 
the  share  of  sovereignty  reserved  by  the  Constitution  to 
the  Union,  the  natural  consequence  is  that  it  should  come 
within  the  jurisdiction  of  a  Federal  court. 

Whenever  the  laws  of  the  United  States  are  attacked, 
or  whenever  they  are  resorted  to  in  self-defence,  the  Fe- 
deral courts  must  be  appealed  to.  Thus  the  jurisdiction 
of  the  tribunals  of  the  Union  extends  and  narrows  its 
limits  exactly  in  the  same  ratio  as  the  sovereignty  of  the 
Union  augments  or  decreases.  We  have  shown  that  the 
principal  aim  of  the  legislators  of  1789  was  to  divide  the 
sovereign  authority  into  two  parts.  In  the  one  they 
placed  the  control  of  all  the  general  interests  of  the  Union, 
in  the  other  the  control  of  the  special  interests  of  its  com- 
ponent States.  Their  chief  solicitude  was  to  arm  the 
Federal  Government  \vith  sufficient  power  to  enable  it 
to  resist,  within  its  sphere,  the  encroachments  of  the 
several  States.  As  for  these  communities,  the  principle 
of  independence  within  certain  limits  of  their  own  was 
adopted  in  their  behalf;  and  they  were  concealed 
from  the  inspection,  and  protected  from  the  control,  of 


169 

the  central  Government.  In  speaking  of  the  division 
of  authority,  I  observed  that  this  latter  principle  had  not 
always  been  held  sacred,  since  the  States  are  prevented 
from  passing  certain  laws,  which  apparently  belong  to 
their  own  particular  sphere  of  interest.  When  a  State  of 
the  Union  passes  a  law  of  this  kind,  the  citizens  who 
are  injured  by  its  execution  can  appeal  to  the  Federal 
courts. 

Thus  the  jurisdiction  of  the  Federal  courts  extends 
not  only  to  all  the  cases  which  arise  under  the  laws  of 
the  Union,  but  also  to  those  which  arise  under  laws 
made  by  the  several  States  in  opposition  to  the  Consti- 
tution. The  States  are  prohibited  from  making  ex-post- 
facto  laws  in  criminal  cases ;  and  any  person  condemned 
by  virtue  of  a  law  of  this  kind  can  appeal  to  the  judicial 
power  of  the  Union.  The  States  are  likewise  prohibited 
from  making  laws  which  may  have  a  tendency  to  im- 
pair the  obligations  of  contracts  *.  If  a  citizen  thinks 
that  an  obligation  of  this  kind  is  impaired  by  a  law  passed 
in  his  State,  he  may  refuse  to  obey  it,  and  may  appeal 
to  the  Federal  courts  f. 

*  It  is  perfectly  clear,  says  Mr.  Story  (Commentaries,  p.  503,  or 
in  the  large  edition  §  1379),  that  any  law  which  enlarges,  abridges, 
or  in  any  manner  changes  the  intention  of  the  parties,  resulting  from 
the  stipulations  in  the  contract,  necessarily  impairs  it.  He  gives  in 
the  same  place  a  very  long  and  careful  definition  of  what  is  under- 
stood by  a  contract  in  Federal  jurisprudence.  A  grant  made  by  the 
State  to  a  private  individual,  and  accepted  by  him,  is  a  contract,  and 
cannot  be  revoked  by  any  future  law.  A  charter  granted  by  the  State 
to  a  company  is  a  contract,  and  equally  binding  to  the  State  as  to 
the  grantee.  The  clause  of  the  Constitution  here  referred  to  insures, 
therefore,  the  existence  of  a  great  part  of  acquired  rights,  but  not  of 
a1.!.  Property  may  legally  be  held,  though  it  may  not  have  passed 
into  the  possessor's  hands  by  means  of  a  contract;  and  its  possession 
is  an  acquired  right,  not  guaranteed  by  the  Federal  Constitution. 

f  A  remarkable  instance  of  this  is  given  by  Mr.  Story  (p.  508,  or 
in  the  large  edition  §  1388).  "Dartmouth  College  in  New  Hamp- 
shire had  been  founded  by  a  charter  granted  to  certain  individuals 
before  the  American  Revolution,  and  its  trustees  formed  a  corpora- 
tion under  this  charter.  The  legislature  of  New  Hampshire  had, 
without  the  consent  of  this  corporation,  passed  an  act  changing  the 

VOL.  I.  1 


This  provision  appears  to  me  to  be  the  most  serious 
attack  upon  the  independence  of  the  States.  The  rights 
awarded  to  the  Federal  Government  for  purposes  of  Ob- 
's ions  national  importance  are  definite  and  easily  com- 
prehensible :  but  those  with  which  this  last  clause  in- 
vests it  are  not  either  clearly  appreciable  or  accurately 
defined.  For  there  are  vast  numbers  of  political  laws 
which  influence  the  existence  of  obligations  of  contracts, 
Avhich  may  thus  furnish  an  easy  pretext  for  the  aggres- 
sions of  the  central  authority. 

organization  of  the  original  provincial  charter  of  the  college,  and 
transferring  all  the  rights,  privileges,  and  franchises  from  the  old 
charter  trustees  to  new  trustees  appointed  under  the  act.  The  con- 
stitutionality of  the  act  was  contested,  and,  after  solemn  arguments, 
it  was  deliberately  held  by  the  Supreme  Court  that  the  provincial 
charter  was  a  contract  within  the  meaning  of  the  Constitution  (Art. 
I.  sect.  10.),  and  that  the  amendatory  act  was  utterly  void,  as  im- 
pairing the  obligation  of  that  charter.  The  college  was  deemed,  like 
other  colleges  of  private  foundation,  to  be  a  private  eleemosynary 
institution,  endowed  by  its  charter  with  a  capacity  to  take  property 
unconnected  with  the  Government.  Its  funds  were  hestowed  upon 
the  faith  of  the  charter,  and  those  funds  consisted  entirely  of  private 
donations.  It  is  true  that  the  uses  were  in  some  sense  public,  that  is, 
for  the  general  benefit,  and  not  for  the  mere  benefit  of  the  corporators ; 
hut  this  did  not  make  the  corporation  a  public  corporation.  It  was 
a  private  institution  for  general  charity.  It  was  not  distinguishable 
in  principle  from  a  private  donation,  vested  in  private  trustees,  for  a 
public  charity,  or  for  a  particular  purpose  of  beneficence.  And  the 
State  itself,  if  it  had  bestowed  funds  upon  a  charity  of  the  same  nature, 
could  not  resume  those  funds." 

[I  have  been  induced  somewhat  to  extend  the  mention  of  this  case 
made  by  the  author,  because  this  precedent,  whilst  it  explains  an  im- 
portant clause  in  the  American  Constitution,  offers  a  curious  if  not  a 
weighty  opinion  on  the  important  question  of  private  grants  and 
foundations  as  contrasted  with  what  has  been  termed  the  national 
property, — a  question  which  may  prove  the  most  dangerous,  as  it  is 
now  one  of  the  most  serious,  agitated  in  England. —  Translator's  Note.'] 


PROCEDURE  OF  THE  FEDERAL  COURTS. 

Natural  weakness  of  the  judiciary  power  in  confederations. — Legis- 
lators ought  to  strive  as  much  as  possible  to  bring  private  indivi- 
duals, and  not  States,  before  the  Federal  Courts. — How  the  Ame- 
ricans have  succeeded  in  this. — Direct  prosecution  of  private  indi- 
viduals in  the  Federal  Courts. — Indirect  prosecution  of  the  States 
which  violate  the  laws  of  the  Union. — The  decrees  of  the  Supreme 
Court  enervate  but  do  not  destroy  the  provincial  laws. 

I  HAVE  shown  what  the  privileges  of  the  Federal  courts 
are,  and  it  is  no  less  important  to  point  out  the  manner 
in  which  they  are  exercised.  The  irresistible  authority 
of  justice  in  countries  in  which  the  sovereignty  is  undi- 
vided, is  derived  from  the  fact,  that  the  tribunals  of  those 
countries  represent  the  entire  nation  at  issue  with  the 
individual  against  whom  their  decree  is  directed ;  and 
the  idea  of  power  is  thus  introduced  to  corroborate  the 
idea  of  right.  But  this  is  not  always  the  case  in  coun- 
tries in  which  the  sovereignty  is  divided ;  in  them  the 
judicial  power  is  more  frequently  opposed  to  a  fraction 
of  the  nation  than  to  an  isolated  individual,  and  its 
moral  authority  and  physical  strength  are  consequently 
diminished.  In  Federal  States  the  power  of  the  judge 
is  naturally  decreased,  and  that  of  the  justiciable  parties 
is  augmented.  The  aim  of  the  legislator  in  confederate 
States  ought  therefore  to  be,  to  render  the  position  of 
the  courts  of  justice  analogous  to  that  which  they  occupy 
in  countries  where  the  sovereignty  is  undivided ;  in  other 
words  his  efforts  ought  constantly  to  tend  to  maintain 
the  judicial  power  of  the  confederation  as  the  represen- 
tative of  the  nation,  and  the  justiciable  party  as  the  re- 
presentative of  an  individual  interest. 

Every  Government,  whatever  may  be  its  constitution, 
requires  the  means  of  constraining  its  subjects  to  dis- 
charge their  obligations,  and  of  protecting  its  privileges 

i2 


from  their  assaults.  As  far  as  the  direct  action  of  the 
government  on  the  community  is  concerned,  the  Con- 
stitution of  the  United  States  contrived,  by  a  master- 
stroke of  policy,  that  the  Federal  Courts,  acting  in  the 
name  of  the  laws,  should  only  take  cognizance  of  parties 
in  an  individual  capacity.  For,  as  it  had  been  declared 
that  the  Union  consisted  of  one  and  the  same  people 
within  the  limits  laid  down  by  the  Constitution,  the 
inference  was  that  the  Government  created  by  this  Con- 
stitution, and  acting  within  these  limits,  was  invested 
with  all  the  privileges  of  a  national  Government,  one  of 
the  principal  of  which  is  the  right  of  transmitting  its 
injunctions  directly  to  the  private  citizen.  When,  for 
instance,  the  Union  votes  an  impost,  it  does  not  apply 
to  the  States  for  the  levying  of  it,  but  to  every  American 
citizen,  in  proportion  to  his  assessment.  The  Supreme 
Court,  which  is  empowered  to  enforce  the  execution  of 
this  law  of  the  Union,  exerts  its  influence  not  upon  a 
refractory  State,  but  upon  the  private  tax- payer;  and, 
like  the  judicial  power  of  other  nations,  it  is  opposed  to 
the  person  of  an  individual.  It  is  to  be  observed  that 
the  Union  chose  its  own  antagonist ;  and  as  that  anta- 
gonist is  feeble,  he  is  naturally  worsted. 

But  the  difficulty  increases  when  the  proceedings  are 
not  brought  forward  by  but  against  the  Union.  The 
Constitution  recognises  the  legislative  power  of  the 
States ;  and  a  law  so  enacted  may  impair  the  privileges 
of  the  Union,  in  which  case  a  collision  is  unavoidable 
between  that  body  and  the  State  which  has  passed  the 
law :  and  it  only  remains  to  select  the  least  dangerous 
remedy,  which  is  very  clearly  deducible  from  the  gene- 
ral principles  I  have  before  established*. 

It  may  be  conceived  that,  in  the  case  under  considera- 

*  See  Chapter  VI.  on  Judicial  Power  in  America. 


173 

tion,  the  Union  might  have  sued  the  State  before  a  Fede- 
ral court,  which  would  have  annulled  the  act ;  and  by 
this  means  it  would  have  adopted  a  natural  course  of 
proceeding :  but  the  judicial  power  would  have  been 
placed  in  open  hostility  to  the  State,  and  it  was  desira- 
ble to  avoid  this  predicament  as  much  as  possible.  The 
Americans  hold  that  it  is  nearly  impossible  that  a  new 
law  should  not  impair  the  interests  of  some  private  in- 
dividual by  its  provisions:  these  private  interests  are 
assumed  by  the  American  legislators  as  the  ground  of 
attack  against  such  measures  as  may  be  prejudicial  to 
the  Union,  and  it  is  to  these  cases  that  the  protection  of 
the  Supreme  Court  is  extended. 

Suppose  a  State  vends  a  certain  portion  of  its  terri- 
tory to  a  company,  and  that  a  year  afterwards  it  passes 
a  law  by  which  the  territory  is  otherwise  disposed  of, 
and  that  clause  of  the  Constitution,  which  prohibits  laws 
impairing  the  obligation  of  contracts,  violated.  When 
the  purchaser  under  the  second  act  appears  to  take  pos- 
session, the  possessor  under  the  first  act  brings  his  ac- 
tion before  the  tribunals  of  the  Union,  and  causes  the 
title  of  the  claimant  to  be  pronounced  null  and  void*. 
Thus,  in  point  of  fact,  the  judicial  power  of  the  Union 
is  contesting  the  claims  of  the  sovereignty  of  a  State ; 
but  it  only  acts  indirectly  and  upon  a  special  application 
of  detail :  it  attacks  the  law  in  its  consequences,  not  in 
its  principle,  and  it  rather  weakens  than  destroys  it. 

The  last  hypothesis  that  remained  was  that  each  State 
formed  a  corporation  enjoying  a  separate  existence  and 
distinct  civil  rights,  and  that  it  could  therefore  sue  or 

O  * 

be  sued  before  a  tribunal.  Thus  a  State  could  bring  an 
action  against  another  State.  In  this  instance  the  Union 
was  not  called  upon  to  contest  a  provincial  law,  but  to 

*  See  Kent's  Commentaries,  vol.  i.  p.  387. 


174 

try  a  suit  in  which  a  State  was  a  party.  This  suit  was 
perfectly  similar  to  any  other  cause,  except  that  the 
quality  of  the  parties  was  different ;  and  here  the  dan- 
ger pointed  out  at  the  beginning  of  this  chapter  exists 
with  less  chance  of  being  avoided.  The  inherent  dis- 
advantage of  the  very  essence  of  Federal  constitutions 
is,  that  they  engender  parties  in  the  bosom  of  the  nation 
which  present  powerful  obstacles  to  the  free  course 
of  justice. 


HIGH  RANK  OP  THE  SUPREME  COURTS  AMONGST  THE 
GREAT  POWERS  OF  STATE. 

No  nation  ever  constituted  so  great  a  judicial  power  as  the  Ameri- 
cans.— Extent  of  its  prerogative. — Its  political  influence. — The 
tranquillity  and  the  very  existence  of  the  Union  depend  on  the 
discretion  of  the  seven  Federal  Judges. 

WHEN  we  have  successively  examined  in  detail  the  or- 
ganization of  the  Supreme  Court,  and  the  entire  pre- 
rogatives which  it  exercises,  we  shall  readily  admit  that 
a  more  imposing  judicial  power  was  never  constituted 
by  any  people.  The  Supreme  Court  is  placed  at  the 
head  of  all  known  tribunals,  both  by  the  nature  of  its 
rights  and  the  class  of  justiciable  parties  which  it  con- 
trols. 

In  all  the  civilized  countries  of  Europe,  the  Govern- 
ment has  always  shown  the  greatest  repugnance  to 
allow  the  cases  to  which  it  was  itself  a  party  to  be  de- 
cided by  the  ordinary  course  of  justice.  This  repug- 
nance naturally  attains  its  utmost  height  in  an  absolute 
Government ;  and,  on  the  other  hand,  the  privileges  of 
the  courts  of  justice  are  extended  with  the  increasing 
liberties  of  the  people :  but  no  European  nation  has  at 
present  held  that  all  judicial  controversies,  without  re- 


175 

gard  to  their  origin,  can  be  decided  by  the  judges  of 
common  law. 

In  America  this  theory  has  been  actually  put  in  prac- 
tice ;  and  the  Supreme  Court  of  the  United  States  is  the 
sole  tribunal  of  the  nation.  Its  power  extends  to  all  the 
cases  arising  under  laws  and  treaties  made  by  the  exe- 
cutive and  legislative  authorities,  to  all  cases  of  admi- 
ralty and  maritime  jurisdiction,  and  in  general  to  all 
points  which  affect  the  law  of  nations.  It  may  even  be 
affirmed  that,  although  its  constitution  is  essentially 
judicial,  its  prerogatives  are  almost  entirely  political. 
Its  sole  object  is  to  enforce  the  execution  of  the  laws  of 
the  Union  ;  and  the  Union  only  regulates  the  relations 
of  the  Government  with  the  citizens,  and  of  the  nation 
with  Foreign  Powers  :  the  relations  of  citizens  amongst 
themselves  are  almost  exclusively  regulated  by  the  sove- 
reignty of  the  States. 

A  second  and  still  greater  cause  of  the  preponderance 
of  this  court  may  be  adduced.  In  the  nations  of  Europe 
the  courts  of  justice  are  only  called  upon  to  try  the 
controversies  of  private  individuals ;  but  the  Supreme 
Court  of  the  United  States  summons  sovereign  powers 
to  its  bar.  When  the  clerk  of  the  court  advances  on 
the  steps  of  the  tribunal,  and  simply  says,  "  The  State 
of  New  York  versus  the  State  of  Ohio,"  it  is  impossible 
not  to  feel  that  the  court  which  he  addresses  is  no  ordi- 
nary body ;  and  when  it  is  recollected  that  one  of  these 
parties  represents  one  million,  and  the  other  two  millions 
of  men,  one  is  struck  by  the  responsibility  of  the  seven 
judges  whose  decision  is  about  to  satisfy  or  to  disap- 
point so  large  a  number  of  their  fellow-citizens. 

The  peace,  the  prosperity,  and  the  very  existence  of 
the  Union  are  vested  in  the  hands  of  the  seven  judges. 
Without  their  active  cooperation  the  Constitution  would 
be  a  dead  letter:  the  Executive  appeals  to  them  for 


176 

assistance  against  the  encroachments  of  the  Legislative 
powers ;  the  Legislature  demands  their  protection  from 
the  designs  of  the  Executive ;  they  defend  the  Union 
from  the  disobedience  of  the  States,  the  States  from  the 
exaggerated  claims  of  the  Union,  the  public  interest 
against  the  interests  of  private  citizens,  and  the  conser- 
vative spirit  of  order  against  the  fleeting  innovations  of 
democracy.  Their  power  is  enormous,  but  it  is  clothed 
in  the  authority  of  public  opinion.  They  are  the  all- 
powerful  guardians  of  a  people  which  respects  law ;  but 
they  would  be  impotent  against  popular  neglect  or 
popular  contempt.  The  force  of  public  opinion  is  the 
most  intractable  of  agents,  because  its  exact  limits  cannot 
be  defined :  and  it  is  not  less  dangerous  to  exceed,  than 
to  remain  below  the  boundary  prescribed. 

The  Federal  judges  must  not  only  be  good  citizens, 
and  men  possessed  of  that  information  and  integrity 
which  are  indispensable  to  magistrates,  but  they  must 
be  statesmen, — politicians,  not  unread  in  the  signs  of  the 
times,  not  afraid  to  brave  the  obstacles  which  can  be 
subdued,  nor  slow  to  turn  aside  such  encroaching  ele- 
ments as  may  threaten  the  supremacy  of  the  Union  and 
the  obedience  which  is  due  to  the  laws. 

The  President,  who  exercises  a  limited  power,  may 
err  without  causing  great  mischief  in  the  State.  Con- 
gress may  decide  amiss  without  destroying  the  Union, 
because  the  electoral  body  in  which  Congress  originates 
may  cause  it  to  retract  its  decision  by  changing  its 
members.  But  if  the  Supreme  Court  is  ever  composed 
of  imprudent  men  or  bad  citizens,  the  Union  may  be 
plunged  into  anarchy  or  civil  war. 

The  real  cause  of  this  danger,  however,  does  not  lie  in 
the  constitution  of  this  tribunal,  but  in  the  very  nature 
of  Federal  Governments.  We  have  observed  that  in 
confederate  peoples  it  is  especially  necessary  to  con- 


solidate  the  judicial  authority,  because  in  no  other  na- 
tions do  those  independent  persons  who  are  able  to  cope 
with  the  social  body,  exist  in  greater  power  or  in  a 
better  condition  to  resist  the  physical  strength  of  the 
Government.  But  the  more  a  power  requires  to  be 
strengthened,  the  more  extensive  and  independent  it 
must  be  made ;  and  the  dangers  which  its  abuse  may 
create  are  heightened  by  its  independence  and  its 
strength.  The  source  of  the  evil  is  not,  therefore,  in  the 
constitution  of  the  power,  but  in  the  constitution  of 
those  States  which  render  its  existence  necessary. 


IN  WHAT  RESPECTS    THE  FEDERAL    CONSTITUTION    IS 
SUPERIOR  TO  THAT  OF  THE  STATES. 

In  what  respects  the  Constitution  of  the  Union  can  be  compared  to 
that  of  the  States. — Superiority  of  the  Constitution  of  the  Union 
attributable  to  the  wisdom  of  the  Federal  legislators. — Legislature 
of  the  Union  less  dependent  on  the  people  than  that  of  the 
States. — Executive  power  more  independent  in  its  sphere. — 
Judicial  power  less  subjected  to  the  inclinations  of  the  majority. — 
Practical  consequence  of  these  facts. — The  dangers  inherent  in  a 
democratic  government  eluded  by  the  Federal  legislators,  and 
increased  by  the  legislators  of  the  States,  t 

THE  Federal  Constitution  differs  essentially  from  that 
of  the  States  in  the  ends  which  it  is  intended  to  accom- 
plish ;  but  in  the  means  by  which  these  ends  are  pro- 
moted, a  greater  analogy  exists  between  them.  The 
objects  of  the  Governments  are  different,  but  their  forms 
are  the  same ;  and  in  this  special  point  of  view  there  is 
some  advantage  in  comparing  them  together. 

I  am  of  opinion  that  the  Federal  Constitution  is  su- 
perior to  all  the  Constitutions  of  the  States,  for  several 
reasons. 

The  present  Constitution  of  the  Union  was  formed 
at  a  later  period  than  those  of  the  majority  of  the  States, 

i  5 


173 

and  it  may  have  derived  some  ameliorations  from  past 
experience.  But  we  shall  be  led  to  acknowledge  that 
this  is  only  a  secondary  cause  of  its  superiority,  when 
we  recollect  that  eleven  new  States  have  been  added  to 
the  American  Confederation  since  the  promulgation  of 
the  Federal  Constitution,  and  that  these  new  republics 
have  always  rather  exaggerated  than  avoided  the  defects 
which  existed  in  the  former  Constitutions. 

The  chief  cause  of  the  superiority  of  the  Federal  Con- 
stitution lay  in  the  character  of  the  legislators  who  com- 
posed it.     At  the  time  when  it  wras  formed  the  dangers 
of  the  Confederation  were  imminent,  and  its  ruin  seemed 
inevitable.     In  this  extremity  the  people  chose  the  men 
who  most  deserved  the  esteem,  rather  than  those  who 
had  gained  the  affections,  of  the  country.     I  have  already 
observed  that,  distinguished  as  almost  all  the  legislators 
of  the  Union  were  for  their  intelligence,  they  were  still 
more  so  for  their  patriotism.     They  had  all  been  nur- 
tured at  a  time  when  the  spirit  of  liberty  was  braced  by 
a  continual  struggle  against  a  powerful  and  predominant 
authority.     When  the  contest  was  terminated,  whilst  the 
excited  passions  of  the  populace  persisted  in  warring 
with  dangers  whicH  had  ceased  to  threaten  them,  these 
men  stopped  short  in  their  career ;  they  cast  a  calmer 
and  more  penetrating  look  upon  the  country  which  was 
now  their  own ;  they  perceived  that  the  war  of  independ- 
ence was  definitively  ended,  and  that  the  only  dangers 
which  America  had  to  fear  were  those  which  might  result 
from  the  abuse  of  the  freedom  she  had  won.     They  had 
the  courage  to  say  what  they  believed  to  be  true,  because 
they   were  animated  by  a  warm  and  sincere  love  of 
liberty ;  and  they  ventured  to  propose  restrictions,  be- 
cause they  were  resolutely  opposed  to  destruction*. 

*  At  this  time  Alexander  Hamilton,  who  was  one  of  the  principal 


179 

The  greater  number  of  the  Constitutions  of  the  States 
assign  one  year  for  the  duration  of  the  House  of  Repre- 
sentatives, and  two  years  for  that  of  the  Senate ;  so  that 
members  of  the  legislative  body  are  constantly  and 
narrowly  tied  down  by  the  slightest  desires  of  their 
constituents.  The  legislators  of  the  Union  were  of 
opinion  that  this  excessive  dependence  of  the  legislature 
tended  to  alter,  the  nature  of  the  main  consequences  of 
the  representative  system,  since  it  vested  the  source  not 
only  of  authority,  but  of  government,  in  the  people. 
They  increased  the  length  of  the  time  for  which  the 

founders  of  the  Constitution,  ventured  to  express  the  following  senti- 
ments in  the  Federalist,  No.  71  : 

"  There  are  some,  who  would  be  inclined  to  regard  the  servile 
pliancy  of  the  Executive  to  a  prevailing  current,  either  in  the  com- 
munity or  in  the  legislature,  as  its  best  recommendation.  But  such 
men  entertain  very  crude  notions,  as  well  of  the  purposes  for  which 
government  was  instituted,  as  of  the  true  means  by  which  the  public 
happiness  may  be  promoted.  The  republican  principle  demands  that 
the  deliberative  sense  of  the  community  should  govern  the  conduct  of 
those  to  whom  they  entrust  the  management  of  their  affairs ;  but  it 
does  not  require  an  unqualified  complaisance  to  every  sudden  breeze 
of  passion,  or  to  every  transient  impulse  which  the  people  may  receive 
from  the  arts  of  men  who  flatter  their  prejudices  to  betray  their 
interests.  It  is  a  just  observation  that  the  people  commonly  intend 
the  public  good.  This  often  applies  to  their  very  errors.  But  their 
good  sense  would  despise  the  adulator  who  should  pretend  that  they 
always  reason  right  about  the  means  of  promoting  it.  They  know 
from  experience  that  they  sometimes  err ;  and  the  wonder  is  that 
they  so  seldom  err  as  they  do,  beset,  as  they  continually  are,  by  the 
wiles  of  parasites  and  sycophants ;  by  the  snares  of  the  ambitious,  the 
avaricious,  the  desperate ;  by  the  artifices  of  men  who  possess  their 
confidence  more  than  they  deserve  it ;  and  of  those  who  seek  to  possess, 
rather  than  to  deserve  it.  When  occasions  present  themselves  in 
which  the  interests  of  the  people  are  at  variance  with  their  inclina- 
tions, it  is  the  duty  of  persons  whom  they  have  appointed  to  be  the 
guardians  of  those  interests,  to  withstand  the  temporary  delusion,  in 
order  to  give  them  time  and  opportunity  for  more  cool  and  sedate 
reflection.  Instances  might  be  cited  in  which  a  conduct  of  this  kind 
has  saved  the  people  from  very  fatal  consequences  of  their  own 
mistakes,  and  has  procured  lasting  monuments  of  their  gratitude  to 
the  men  who  had  courage  and  magnanimity  enough  to  serve  them  at 
the  peril  of  their  displeasure." 


180 

representatives  were  returned,  in  order  to  give  them 
freer  scope  for  the  exercise  of  their  own  judgement. 

The  Federal  Constitution,  as  well  as  the  Constitutions 
of  the  different  States,  divided  the  legislative  body  into 
two  branches.  But  in  the  States  these  two  branches 
were  composed  of  the  same  elements,  and  elected  in  the 
same  manner.  The  consequence  was  that  the  passions 
and  inclinations  of  the  populace  were  as  rapidly  and  as 
energetically  represented  in  one  chamber  as  in  the  other, 
and  that  laws  were  made  with  all  the  characteristics  of 
violence  and  precipitation.  By  the  Federal  Constitu- 
tion the  two  houses  originate  in  like  manner  in  the  choice 
of  the  people  ;  but  the  conditions  of  eligibility  and  the 
mode  of  election  were  changed,  to  the  end  that  if,  as  is 
the  case  in  certain  nations,  one  branch  of  the  legislature 
represents  the  same  interests  as  the  other,  it  may  at  least 
represent  a  superior  degree  of  intelligence  and  discretion. 
A  mature  age  was  made  one  of  the  conditions  of  the 
senatorial  dignity,  and  the  Upper  House  was  chosen  by 
an  elected  assembly  of  a  limited  number  of  members. 

To  concentrate  the  whole  social  force  in  the  hands  of 
the  legislative  body  is  the  natural  tendency  of  demo- 
cracies ;  for  as  this  is  the  power  which  emanates  the 
most  directly  from  the  people,  it  is  made  to  participate 
most  fully  in  the  preponderating,  authority  of  the  mul- 
titude, and  it  is  naturally  led  to  monopolise  every  species 
of  influence.  This  concentration  is  at  once  prejudicial 
to  a  well-conducted  administration,  and  favourable  to 
the  despotism  of  the  majority.  The  legislators  of  the 
States  frequently  yielded  to  these  democratic  propensities, 
which  were  invariably  and  courageously  resisted  by  the 
founders  of  the  Union. 

In  the  States  the  executive  power  is  vested  in  the 
hands  of  a  magistrate,  who  is  apparently  placed  upon  a 


181 

level  with  the  legislature,  but  who  is  in  reality  nothing 
more  than  the  blind  agent  and  the  passive  instrument 
of  its  decisions.  He  can  derive  no  influence  from  the 
duration  of  his  functions,  which  terminate  with  the 
revolving  year,  or  from  the  exercise  of  prerogatives 
which  can  scarcely  be  said  to  exist.  The  legislature 
can  condemn  him  to  inaction  by  entrusting  the  execu- 
tion of  the  laws  to  special  committees  of  its  own  mem- 
bers, and  can  annul  his  temporary  dignity  by  depriving 
him  of  his  salary.  The  Federal  Constitution  vests  all 
the  privileges  and  all  the  responsibility  of  the  executive 
power  in  a  single  individual.  The  duration  of  the 
Presidency  is  fixed  at  four  years;  the  salary  of  the 
individual  who  fills  that  office  cannot  be  altered  during 
the  term  of  his  functions ;  he  is  protected  by  a  body  of 
official  dependents,  and  armed  with  a  suspensive  veto. 
In  short,  every  effort  was  made  to  confer  a  strong  and 
independent  position  upon  the  executive  authority, 
within  the  limits  which  had  been  prescribed  to  it. 

In  the  Constitutions  of  all  the  States  the  judicial 
power  is  that  which  remains  the  most  independent  of 
the  legislative  authority :  nevertheless,  in  all  the  States 
the  legislature  has  reserved  to  itself  the  right  of  regu- 
lating the  emoluments  of  the  judges,  a  practice  which 
necessarily  subjects  these  magistrates  to  its  immediate 
influence.  In  some  States  the  judges  are  only  tem- 
porarily appointed,  which  deprives  them  of  a  great  por- 
tion of  their  power  and  their  freed6m.  In  others  the 
legislative  and  judicial  powers  are  entirely  confounded: 
thus  the  Senate  of  New  York,  for  instance,  constitutes  in 
certain  cases  the  superior  court  of  the  State.  The  Federal 
Constitution,  on  the  other  hand,  carefully  separates  the 
judicial  authority  from  all  external  influences;  and  it 
provides  for  the  independence  of  the  judges,  by  declaring 


that  their  salary  shall  not  be  altered,  and  that  their 
functions  shall  be  inalienable. 

The  practical  consequences  of  these  different  systems 
may  easily  be  perceived.  An  attentive  observer  will 
soon  remark  that  the  business  of  the  Union  is  incom- 
parably better  conducted  than  that  of  any  individual 
State.  The  conduct  of  the  Federal  Government  is  more 
fair  and  more  temperate  than  that  of  the  States ;  its 
designs  are  more  fraught  with  wisdom,  its  projects  are 
more  durable  and  more  skilfully  combined,  its  measures 
are  put  into  execution  with  more  vigour  and  consistency. 

I  recapitulate  the  substance  of  this  chapter  in  a  few 
words : 

The  existence  of  democracies  is  threatened  by  two 
dangers,  viz.  the  complete  subjection  of  the  legislative 
body  to  the  caprices  of  the  electoral  body;  and  the 
concentration  of  all  the  powers  of  the  Government  in 
the  legislative  authority. 

The  growth  of  these  evils  has  been  encouraged  by 
the  policy  of  the  legislators  of  the  States ;  but  it  has 
been  resisted  by  the  legislators  of  the  Union  by  every 
means  which  lay  within  their  control. 


CHARACTERISTICS  WHICH  DISTINGUISH  THE  FEDERAL 
CONSTITUTION  OF  THE  UNITED  STATES  OF  AMERICA 
FROM  ALL  OTHER  FEDERAL  CONSTITUTIONS. 

American  Union  appears  to  resemble  all  other  confederations. — 
Nevertheless  its  effects  are  different. — Reason  of  this. — Distinc- 
tions between  the  Union  and  all  other  confederations. — The 
American  Government  not  a  Federal,  but  an  imperfect  national, 
Government. 

THE  United  States  of  America  do  not  afford  either  the 
first  or  the  only  instance  of  confederate  States,  several 


183 

of  which  have  existed  in  modern  Europe,  without 
adverting  to  those  of  antiquity.  Switzerland,  the  Ger- 
manic Empire,  and  the  Republic  of  the  United  Pro- 
vinces either  have  been  or  still  are  confederations.  In 
studying  the  Constitutions  of  these  different  countries, 
the  politician  is  surprised  to  observe  that  the  powers 
with  which  they  invested  the  Federal  Government  are 
nearly  identical  with  the  privileges  awarded  by  the 
American  Constitution  to  the  Government  of  the  United 
States.  They  confer  upon  the  central  power  the  same 
rights  of  making  peace  and  war,  of  raising  money  and 
troops,  and  of  providing  for  the  general  exigencies  and 
the  common  interests  of  the  nation.  Nevertheless  the 
Federal  Government  of  these  different  peoples  has 
always  been  as  remarkable  for  its  weakness  and  ineffi- 
ciency as  that  of  the  Union  is  for  its  vigorous  and  enter- 
prising spirit.  Again,  the  first  American  Confedera- 
tion perished  through  the  excessive  weakness  of  its 
Government ;  and  this  weak  Government  was,  notwith- 
standing, in  possession  of  rights  even  more  extensive 
than  those  of  the  Federal  Government  of  the  present 
day.  But  the  more  recent  Constitution  of  the  United 
States  contains  certain  principles  which  exercise  a  most 
important  influence,  although  they  do  not  at  once  strike 
the  observer. 

This  Constitution,  which  may  at  first  sight  be  con- 
founded with  the  Federal  constitutions  which  preceded 
it,  rests  upon  a  novel  theory,  which  may  be  considered 
as  a  great  invention  in  modern  political  sciefTce.  In  all 
the  confederations  wrhich  had  been  formed  before  the 
American  Constitution  of  1789,  the  allied  States  agreed 
to  obey  the  injunctions  of  a  Federal  Government ;  but 
they  reserved  to  themselves  the  right  of  ordaining  and 
enforcing  the  execution  of  the  laws  of  the  Union.  The 
American  States  which  combined  in  1789  agreed  that 


184 

the  Federal  Government  should  not  only  dictate  the 
laws,  but  that  it  should  execute  its  own  enactments. 
In  both  cases  the  right  is  the  same,  but  the  exercise  of 
the  right  is  different ;  and  this  alteration  produced  the 
most  momentous  consequences. 

In  all  the  confederations  which  had  been  formed 
before  the  American  Union,  the  Federal  Government 
demanded  its  supplies  at  the  hands  of  the  separate 
Governments ;  and  if  the  measure  it  prescribed  was 
onerous  to  any  one  of  those  bodies,  means  were  found 
to  evade  its  claims  :  if  the  State  was  powerful,  it  had 
recourse  to  arms ;  if  it  was  weak,  it  connived  at  the 
resistance  which  the  law  of  the  Union,  its  sovereign, 
met  with,  and  resorted  to  inaction  under  the  plea  of 
inability.  Under  these  circumstances  one  of  two  alter- 
natives has  invariably  occurred :  either  the  most  prepon- 
derant of  the  allied  peoples  has  assumed  the  privileges 
of  the  Federal  authority,  and  ruled  all  the  other  States 
in  its  name*;  or  the  Federal  Government  has  been 
abandoned  by  its  natural  supporters,  anarchy  has  arisen 
between  the  confederates,  and  the  Union  has  lost  all 
powers  of  action  f. 

In  America,  the  subjects  of  the  Union  are  not  States, 
but  private  citizens :  the  national  Government  levies  a 
tax,  not  upon  the  State  of  Massachusetts,  but  upon  each 
inhabitant  of  Massachusetts.  All  former  confederate 
governments  presided  over  communities,  but  that  of 
the  Union  rules  individuals ;  its  force  is  not  borrowed, 

*  This  was  the  case  in  Greece,  when  Philip  undertook  to  execute 
the  decree  of  the  Araphictyons ;  in  the  Low  Countries,  where  the 
province  of  Holland  always  gave  the  law ;  and  in  our  own  time  in 
the  Germanic  Confederation,  in  which  Austria  and  Prussia  assume 
a  great  degree  of  influence  over  the  whole  country,  in  the  name  of 
the  Diet. 

f  Such  has  always  been  the  situation  of  the  Swiss  Confederation, 
which  would  have  perished  ages  ago  but  for  the  mutual  jealousies  of 
its  neighbours. 


185 

but  self-derived ;  and  it  is  served  by  its  own  civil  and 
military  officers,  by  its  own  army,  and  its  own  courts  of 
justice.  It  cannot  be  doubted  that  the  spirit  of  the 
nation,  the  passions  of  the  multitude,  and  the  provincial 
prejudices  of  each  State,  tend  singularly  to  diminish  the 
authority  of  a  Federal  authority  thus  constituted,  and 
to  facilitate  the  means  of  resistance  to  its  mandates ;  but 
the  comparative  weakness  of  a  restricted  sovereignty  is 
an  evil  inherent  in  the  Federal  system.  In  America, 
each  State  has  fewer  opportunities  of  resistance,  and 
fewer  temptations  to  non-compliance ;  nor  can  such  a 
design  be  put  in  execution  (if  indeed  it  be  entertained) 
without  an  open  violation  of  the  laws  of  the  Union,  a 
direct  interruption  of  the  ordinary  course  of  justice, 
and  a  bold  declaration  of  revolt ;  in  a  word,  without 
taking  a  decisive  step,  which  men  hesitate  to  adopt. 

In  all  former  confederations  the  privileges  of  the 
Union  furnished  more  elements  of  discord  than  of  power, 
since  they  multiplied  the  claims  of  the  nation  without 
augmenting  the  means  of  enforcing  them ;  and  in  accord- 
ance with  this  fact  it  may  be  remarked,  that  the  real 
weakness  of  federal  governments  has  almost  always  been 
in  the  exact  ratio  of  their  nominal  power.  Such  is  not 
the  case  in  the  American  Union,  in  which,  as  in  ordinary 
governments,  the  Federal  Government  has  the  means  of 
enforcing  all  it  is  empowered  to  demand. 

The  human  understanding  more  easily  invents  new 
things  than  new  words,  and  we  are  thence  constrained 
to  employ  a  multitude  of  improper  and  inadequate 
expressions.  When  several  nations  form  a  permanent 
league,  and  establish  a  supreme  authority,  which,  al- 
though it  has  not  the  same  influence  over  the  members 
of  the  community  as  a  national  government,  acts  upon 
each  of  the  confederate  States  in  a  body,  this  government, 
which  is  so  essentially  different  from  all  others,  is  deno-- 


186 

urinated  a  Federal  one.  Another  form  of  society  is 
afterwards  discovered,  in  which  several  peoples  are  fused 
into  one  and  the  same  nation  with  regard  to  certain 
common  interests,  although  they  remain  distinct,  or  at 
least  only  confederate,  with  regard  to  all  their  other 
concerns.  In  this  case  the  central  power  acts  directly 
upon  those  \vhom  it  governs,  whom  it  rules,  and  whom 
it  judges,  in  the  same  manner  as,  but  in  a  more  limited 
circle  than,  a  national  government.  Here  the  term  of 
Federal  government  is  clearly  no  longer  applicable  to 
a  state  of  things  which  must  be  styled  an  incomplete 
national  government :  a  form  of  government  has  been 
found  out  which  is  neither  exactly  national  nor  federal ; 
but  no  further  progress  has  been  made,  and  the  new 
word  which  will  one  day  designate  this  novel  invention 
does  not  yet  exist. 

The  absence  of  this  new  species  of  confederation  has 
been  the  cause  wrhich  has  brought  all  Unions  to  civil  war, 
to  subjection,  or  to  a  stagnant  apathy ;  and  the  peoples 
which  formed  these  leagues  have  been  either  too  dull  to 
discern,  or  too  pusillanimous  to  apply,  this  great  remedy. 
The  American  Confederation  perished  by  the  same  de- 
fects. 

But  the  confederate  States  of  America  had  been  long 
accustomed  to  form  a  portion  of  one  empire  before  they 
had  won  their  independence ;  they  had  not  contracted 
the  habit  of  governing  themselves,  and  their  national 
prejudices  had  not  taken  deep  root  in  their  minds. 
Superior  to  the  rest  of  the  world  in  political  knowledge, 
and  sharing  that  knowledge  equally  amongst  them- 
selves, they  were  little  agitated  by  the  passions  which 
generally  oppose  the  extension  of  federal  authority  in  a 
nation,  and  those  passions  were  checked  by  the  wisdom 
of  the  chief  citizens.  The  Americans  applied  the  re- 
medy with  prudent  firmness  as  soon  as  they  were 


187 

conscious  of  the  evil ;    they  amended  their  laws,  and 
they  saved  their  country. 


ADVANTAGES  OF  THE  FEDERAL  SYSTEM  IN  GENERAL, 
AND  ITS  SPECIAL  UTILITY  IN  AMERICA. 

Happiness  and  freedom  of  small  nations. — Power  of  great  nations. — 
Great  empires  favourable  to  the  growth  of  civilization. — Strength, 
often  the  first  element  of  national  prosperity. — Aim  of  the  Federal 
system  to  unite  the  twofold  advantages  resulting  from  a  small  and 
from  a  large  territory. — Advantages  derived  by  the  United  States 
from  this  system. — The  law  adapts  itself  to  the  exigencies  of  the 
population ;  population  does  not  conform  to  the  exigencies  of  the 
law.— Activity,  amelioration,  love  and  enjoyment  of  freedom  in  the 
American  communities. — Public  spirit  of  the  Union  the  abstract  of 
provincial  patriotism. — Principles  and  things  circulate  freely  over 
the  territory  of  the  United  States. — The  Union  is  happy  and  free 
as  a  little  nation,  and  respected  as  a  great  empire. 

Lv  small  nations  the  scrutiny  of  society  penetrates  into 
every  part,  and  the  spirit  of  improvement  enters  into 
the  most  trifling  details ;  as  the  ambition  of  the  people 
is  necessarily  checked  by  its  weakness,  all  the  efforts 
and  resources  of  the  citizens  are  turned  to  the  internal 
benefit  of  the  community,  and  are  not  likely  to  evaporate 
in  the  fleeting  breath  of  glory.  The  desires  of  every 
individual  are  limited,  because  extraordinary  faculties 
are  rarely  to  be  met  with.  The  gifts  of  an  equal  fortune 
render  the  various  conditions  of  life  uniform  ;  and  the 
manners  of  the  inhabitants  are  orderly  and  simple. 
Thus,  if  we  estimate  the  gradations  of  popular  morality 
and  enlightenment,  we  shall  generally  find  that  in  small 
nations  there  are  more  persons  in  easy  circumstances, 
a  more  numerous  population,  and  a  more  tranquil  state 
of  society,  than  in  great  empires. 

When  tyranny  is  established  in  the  bosom  of  a  small 


188 

nation,  it  is  more  galling  than  elsewhere,  because,  as  it 
acts  within  a  narrow  circle,  every  point  of  that  circle  is 
subject  to  its  direct  influence.  It  supplies  the  place  of 
those  great  designs  which  it  cannot  entertain,  by  a  violent 
or  an  exasperating  interference  in  a  multitude  of  minute 
details;  and  it  leaves  the  political  world  to  which  it 
properly  belongs,  to  meddle  wdth  the  arrangements  of 
domestic  life.  Tastes  as  well  as  actions  are  to  be  re- 
gulated at  its  pleasure  ;  and  the  families  of  the  citizens 
as  wrell  as  the  affairs  of  the  State  are  to  be  governed  by 
its  decisions.  This  invasion  of  rights  occurs,  however, 
but  seldom,  and  freedom  is  in  truth  the  natural  state  of 
small  communities.  The  temptations  which  the  Govern- 
ment offers  to  ambition  are  too  weak,  and  the  resources 
of  private  individuals  are  too  slender,  for  the  sovereign 
power  easily  to  fall  within  the  grasp  of  a  single  citizen : 
and  should  such  an  event  have  occurred,  the  subjects 
of  the  State  can  without  difficulty  overthrow  the  tyrant 
and  his  oppression  by  a  simultaneous  effort. 

Small  nations  have  therefore  ever  .been  the  cradles  of 
political  liberty :  and  the  fact  that  many  of  them  have 
lost  their  immunities  by  extending  their  dominion, 
shows  that  the  freedom  they  enjoyed  was  more  a  con- 
sequence of  their  inferior  size  than  of  the  character  of 
the  people. 

The  history  of  the  world  affords  no  instance  of  a  great 
nation  retaining  the  form  of  republican  government  for 
a  long  series  of  years*,  and  this  has  led  to  the  conclu- 
sion that  such  a  state  of  things  is  impracticable.  For 
my  own  part,  I  cannot  but  censure  the  imprudence  of 
attempting  to  limit  the  possible,  and  to  judge  the  future, 
on  the  part  of  a  being  who  is  hourly  deceived  by  the 
most  palpable  realities  of  life,  and  who  is  constantly  taken 

*  I  do  not  speak  of  a  confederation  of  small  republics,  but  of  a  great 
consolidated  republic. 


189 

by  surprise  in  the  circumstances  with  which  he  is  most 
familiar.  But  it  may  be  advanced  with  confidence  that 
the  existence  of  a  great  republic  will  always  be  exposed 
to  far  greater  perils  than  that  of  a  small  one. 

All  the  passions  which  are  most  fatal  to  republican 
institutions  spread  with  an  increasing  territory,  whilst 
the  virtues  which  maintain  their  dignity  do  not  augment 
in  the  same  proportion.     The  ambition  of  the  citizens 
increases  with  the  powrer  of  the  State ;  the  strength  of 
parties,  with  the  importance  of  the  ends  they  have  in 
view ;  but  that  devotion  to  the  common  weal,  which  is 
the  surest  check  on  destructive  passions,  is  not  stronger 
in  a  large  than  in  a  small  republic.     It  might,  indeed, 
be  proved  without  difficulty  that  it  is  less  powerful  and 
less  sincere.     The  arrogance  of  wealth  and  the  dejection 
of  wretchedness,  capital  cities  of  unwonted  extent,  a  lax 
morality,  a  vulgar  egotism,  and  a  great  confusion  of  in- 
terests, are  the  dangers  which  almost  invariably  arise 
from  the  magnitude  of  States.     But  several  of  these 
evils  are  scarcely  prejudicial  to  a  monarchy,  and  some 
of  them  contribute  to  maintain  its  existence.     In  mo- 
narchical States  the  strength  of  the  Government  is  its 
own ;  it  may  use,  but  it  does  not  depend  on  the  com- 
munity ;  and  the  authority  of  the  prince  is  proportioned 
to  the  prosperity  of  the  nation  :  but  the  only  security 
which  a  republican  Government  possesses  against  these 
evils  lies  in  the  support  of  the  majority.     This  support 
is  not,  however,  proportionably  greater  in  a  large  re- 
public than  it  is  in  a  small  one ;  and  thus  whilst  the 
means  of  attack  perpetually  increase  both  in  number  and 
in  influence,  the  power  of  resistance  remains  the  same : 
or  it  may  rather  be  said  to  diminish,  since  the  propen- 
sities and  interests  of  the  people  are  diversified  by  the 
increase  of  population,  and  the  difficulty  of  forming  a 
compact  majority  is  constantly  augmented.     It  has  been 


190 

observed,  moreover,  that  the  intensity  of  human  passions 
is  heightened,  not  only  by  the  importance  of  the  end 
Avhich  they  propose  to  attain,  but  by  the  multitude  of 
individuals  who  are  animated  by  them  at  the  same  time. 
Every  one  has  had  occasion  to  remark  that  his  emotions 
in  the  midst  of  a  sympathizing  crowd  are  far  greater 
than  those  which  he  would  have  felt  in  solitude.  In 
great  republics  the  impetus  of  political  passion  is  irre- 
sistible, not  only  because  it  aims  at  gigantic  purposes, 
but  because  it  is  felt  and  shared  by  millions  of  men  at 
the  same  time. 

It  may  therefore  be  asserted  as  a  general  proposition, 
that  nothing  is  more  opposed  to  the  well-being  and  the 
freedom  of  man  than  vast  empires.  Nevertheless  it  is 
important  to  acknowledge  the  peculiar  advantages  of 
great  States.  For  the  very  reason  which  renders  the 
desire  of  power  more  intense  in  these  communities  than 
amongst  ordinary  men,  the  love  of  glory  is  also  more 
prominent  in  the  hearts  of  a  class  of  citizens,  who  re- 
gard the  applause  of  a  great  people  as  a  reward  worthy 
of  their  exertions,  and  an  elevating  encouragement  to 
man.  If  we  would  learn  why  it  is  that  great  nations 
contribute  more  powerfully  to  the  spread  of  human  im- 
provement than  small  States,  we  shall  discover  an  ade- 
quate cause  in  the  rapid  and  energetic  circulation  of 
ideas,  and  in  those  great  cities  which  are  the  intellectual 
centres  where  all  the  rays  of  human  genius  are  reflected 
and  combined.  To  this  it  may  be  added  that  most  im- 
portant discoveries  demand  a  display  of  national  power 
which  the  Government  of  a  small  State  is  unable  to 
make ;  in  great  nations  the  Government  entertains  a 
greater  number  of  general  notions,  and  is  more  com- 
pletely disengaged  from  the  routine  of  precedent  and  the 
egotism  of  local  prejudice;  its  designs  are  conceived 
with  more  talent,  and  executed  with  more  boldness. 


191 

In  time  of  peace  the  well-being  of  small  nations  is 
undoubtedly  more  general  and  more  complete  ;  but  they 
are  apt  to  suffer  more  acutely  from  the  calamities  of  war 
than  those  great  empires  whose  distant  frontiers  may 
for  ages  avert  the  presence  of  the  danger  from  the  mass 
of  the  people,  which  is  therefore  more  frequently  af- 
flicted than  ruined  by  the  evil. 

But  in  this  matter,  as  in  many  others,  the  argument 
derived  from  the  necessity  of  the  case  predominates  over 
all  others.  If  none  but  small  nations  existed,  I  do  not 
doubt  that  mankind  would  be  more  happy  and  more 
free  ;  but  the  existence  of  great  nations  is  unavoidable. 

This  consideration  introduces  the  element  of  physical 
strength  as  a  condition  of  national  prosperity. 

It  profits  a  people  but  little  to  be  affluent  and  free, 
if  it  is  perpetually  exposed  to  be  pillaged  or  subjugated  ; 
the  number  of  its  manufactures  and  the  extent  of  its 
commerce  are  of  small  advantage,  if  another  nation  has 
the  empire  of  the  seas  and  gives  the  law  in  all  the  mar- 
kets of  the  globe.  Small  nations  are  often  impoverished, 
not  because  they  are  small,  but  because  they  are  weak ; 
and  great  empires  prosper  less  because  they  are  great  than 
because  they  are  strong.  Physical  strength  is  therefore  one 
of  the  first  conditions  of  the  happiness  and  even  of  the 
existence  of  nations.  Hence  it  occurs  that,  unless  very 
peculiar  circumstances  intervene,  small  nations  are  always 
united  to  large  empires  in  the  end,  either  by  force  or  by 
their  own  consent :  yet  I  am  unacquainted  with  a  more 
deplorable  spectacle  than  that  of  a  people  unable  either 
to  defend  or  to  maintain  its  independence. 

The  Federal  system  was  created  with  the  intention  of 
combining  the  different  advantages  which  result  from 
the  greater  and  the  lesser  extent  of  nations ;  and  a  sin- 
gle glance  over  the  United  States  of  America  suffices 


192 

to  discover  the  advantages  which  they  have  derived 
from  its  adoption. 

In  great  centralized  nations  the  legislator  is  obliged 
to  impart  a  character  of  uniformity  to  the  laws,  which 
does  not  always  suit  the  diversity  of  customs  and  of 
districts ;  as  he  takes  no  cognizance  of  special  cases,  he 
can  only  proceed  upon  general  principles  ;  and  the  po- 
pulation is  obliged  to  conform  to  the  exigencies  of  the 
legislation,  since  the  legislation  cannot  adapt  itself  to 
the  exigencies  and  the  customs  of  the  population ; 
which  is  the  cause  of  endless  trouble  and  misery.  This 
disadvantage  does  not  exist  in  confederations ;  Congress 
regulates  the  principal  measures  of  the  national  Govern- 
ment, and  all  the  details  of  the  administration  are  re- 
served to  the  provincial  legislatures.  It  is  impossible  to 
imagine  how  much  this  division  of  sovereignty  contri- 
butes to  the  well-being  of  each  of  the  States  which  com- 
pose the  Union.  In  these  small  communities,  which  are 
never  agitated  by  the  desire  of  aggrandizement  or  the 
cares  of  self-defence,  all  public  authority  and  private 
energy  is  employed  in  internal  amelioration.  The  cen- 
tral Government  of  each  State,  which  is  in  immediate 
juxtaposition  to  the  citizens,  is  daily  apprized  of  the 
wants  which  arise  in  society ;  and  new  projects  are  pro- 
posed every  year,  wrhich  are  discussed  either  at  town- 
meetings  or  by  the  legislature  of  the  State,  and  which 
are  transmitted  by  the  press  to  stimulate  the  zeal  and  to 
excite  the  interest  of  the  citizens.  This  spirit  of  ame- 
lioration is  constantly  alive  in  the  American  republics, 
without  compromising  their  tranquillity ;  the  ambition 
of  power  yields  to  the  less  refined  and  less  dangerous 
love  of  comfort.  It  is  generally  believed  in  America 
that  the  existence  and  the  permanence  of  the  repub- 
lican form  of  government  in  the  New  World  depend 


193 

upon  the  existence  and  the  permanence  of  the  Federal 
system ;  and  it  is  not  unusual  to  attribute  a  large  share 
of  the  misfortunes  which  have  befallen  the  New  States 
of  South  America  to  the  injudicious  erection  of  great 
republics,  instead  of  a  divided  and  confederate  sove- 
reignty. 

It  is  incontestably  true  that  the  love  and  the  habits 
of  republican  government  in  the  United  States  were  en- 
gendered in  the  townships  and  in  the  provincial  assem- 
blies. In  a  small  State,  like  that  of  Connecticut  for  in- 
stance, where  cutting  a  canal  or  laying  down  a  road  is  a 
momentous  political  question,  where  the  State  has  no 
army  to  pay  and  no  wars  to  carry  on,  and  where  much 
wealth  and  much  honour  cannot  be  bestowed  upon  the 
chief  citizens,  no  form  of  government  can  be  more  na- 
tural or  more  appropriate  than  that  of  a  republic.  But 
it  is  this  same  republican  spirit,  it  is  these  manners  and 
customs  of  a  free  people,  which  are  engendered  and  nur- 
tured in  the  different  States,  to  be  afterwards  applied  to 
the  country  at  large.  The  public  spirit  of  the  Union 
is,  so  to  speak,  nothing  more  than  an  abstract  of  the 
patriotic  zeal  of  the  provinces.  Every  citizen  of  the 
United  States  transfuses  his  attachment  to  his  little  re- 
.public  into  the  common  store  of  American  patriotism. 
In  defending  the  Union,  he  defends  the  increasing  pro- 
sperity of  his  own  district,  the  right  of  conducting  its 
affairs,  and  the  hope  of  causing  measures  of  improve- 
ment to  be  adopted  which  may  be  favourable  to  his 
own  interests ;  and  these  are  motives  which  are  wont 
to  stir  men  more  readily  than  the  general  interests  of 
the  country  and  the  glory  of  the  nation. 

On  the  other  hand,  if  the  temper  and  the  manners  of 
the  inhabitants  especially  fitted  them  to  promote  the  wel- 
fare of  a  great  republic,  the  Federal  system  smoothed  the 
obstacles  which  they  might  have  encountered.  The 

VOL.  I.  K 


194 

confederation  of  all  the  American  States  presents  none 
of  the  ordinary  disadvantages  resulting  from  great  ag- 
glomerations of  men.  The  Union  is  a  great  republic  in 
extent,  but  the  paucity  of  objects  for  which  its  Govern- 
ment provides  assimilates  it  to  a  small  State.  Its  acts 
are  important,  but  they  are  rare.  As  the  sovereignty  of 
the  Union  is  limited  and  incomplete,  its  exercise  is  not 
incompatible  with  liberty  ;  for  it  does  not  excite  those 
insatiable  desires  of  fame  and  power  which  have  proved  so 
fatal  to  great  republics.  As  there  is  no  common  centre  to 
the  country,  vast  capital  cities,  colossal  wealth,  abject  po- 
verty, and  sudden  revolutions  are  alike  unknown  ;  and 
political  passion,  instead  of  spreading  over  the  land  like 
a  torrent  of  desolation,  spends  its  strength  against  the 
interests  and  the  individual  passions  of  every  State. 

Nevertheless,  all  commodities  and  ideas  circulate 
throughout  the  Union  as  freely  as  in  a  country  inha- 
bited by  one  people.  Nothing  checks  the  spirit  of  enter- 
prise. The  Government  avails  itself  of  the  assistance 
of  all  who  have  talents  or  knowledge  to  serve  it.  Within 
the  frontiers  of  the  Union  the  profoundest  peace  pre- 
vails, as  within  the  heart  of  some  great  empire ;  abroad, 
it  ranks  with  the  most  powerful  nations  of  the  earth : 
two  thousand  miles  of  coast  are  open  to  the  commerce 
of  the  world  ;  and  as  it  possesses  the  keys  of  the  globe, 
its  flag  is  respected  in  the  most  remote  seas.  The 
Union  is  as  happy  and  as  free  as  a  small  people,  and  as 
glorious  and  as  strong  as  a  great  nation. 


195 


WHY  THE  FEDERAL  SYSTEM  IS  NOT  ADAPTED  TO  ALL 
PEOPLES,  AND  HOW  THE  ANGLO-AMERICANS  WERE 
ENABLED  TO  ADOPT  IT. 

Every  Federal  system  contains  defects  which  baffle  the  efforts  of  the 
legislator. — The  Federal  system  is  complex. — It  demands  a  daily 
exercise  of  discretion  on  thepart  of  the  citizens. — Practical  know- 
ledge of  government  common  amongst  the  Americans. — Relative 
weakness  of  the  Government  of  the  Union,  another  defect  inhe- 
rent in  the  Federal  system. — The  Americans  have  diminished 
•without  remedying  it. — The  sovereignty  of  the  separate  States  ap- 
parently weaker,  but  really  stronger,  than  that  of  the  Union. — 
Why. — Natural  causes  of  union  must  exist  between  confederate 
peoples  beside  the  laws. — What  these  causes  are  amongst  the 
Anglo-Americans. — Maine  and  Georgia,  separated  by  a  distance 
of  a  thousand  miles,  more  naturally  united  than  Normandy  and 

•  Britany. — War,  the  main  peril  of  confederations. — This  proved 
even  by  the  example  of  the  United  States. —  The  Union  has  no 
great  wars  to  fear. — Why. — Dangers  to  which  Europeans  would 
be  exposed  if  they  adopted  the  Federal  system  of  the  Americans. 

WHEN  a  legislator  succeeds,  after  persevering  efforts, 
in  exercising  an  indirect  influence  upon  the  destiny  of 
nations,  his  genius  is  lauded  by  mankind,  whilst,  in 
point  of  fact,  the  geographical  position  of  the  country 
which  he  is  unable  to  change,  a  social  condition  which 
arose  without  his  cooperation,  manners  and  opinions 
which  he  cannot  trace  to  their  source,  and  an  origin 
with  which  he  is  unacquainted,  exercise  so  irresistible 
an  influence  over  the  courses  of  society,  that'he  is  him- 
self borne  away  by  the  current,  after  an  ineffectual  re- 
sistance. Like  the  navigator,  he  may  direct  the  vessel 
which  bears  him  along,  but  he  can  neither  change  its 
structure,  nor  raise  the  winds,  nor  lull  the  waters  which 
swell  beneath  him. 

I  have  shown  the  advantages  which  the  Americans 
derive  from  their  Federal  system ;  it  remains  for  me  to 
point  out  the  circumstances  which  rendered  that  system 

K  2 


196 

practicable,  as  its  benefits  are  not  to  be  enjoyed  by  all 
nations.  The  incidental  defects  of  the  Federal  system 
which  originate  in  the  laws  may  be  corrected  by  the 
skill  of  the  legislator,  but  there  are  further  evils  inhe- 
rent in  the  system  which  cannot  be  counteracted  by  the 
peoples  which  adopt  it.  These  nations  must  therefore 
find  the  strength  necessary  to  support  the  natural  im- 
perfections of  their  Government. 

The  most  prominent  evil  of  all  Federal  systems  is  the 
very  complex  nature  of  the  means  they  employ.  Two 
sovereignties  are  necessarily  in  presence  of  each  other. 
The  legislator  may  simplify  and  equalize  the  action  of 
these  two  sovereignties,  by  limiting  each  of  them  to  a 
sphere  of  authority  accurately  denned  ;  but  he  cannot 
combine  them  into  one,  or  prevent  them  from  coming 
into  collision  at  certain  points.  The  Federal  system 
therefore  rests  upon  a  theory  which  is  necessarily  com- 
plicated, and  which  demands  the  daily  exercise  of  a 
considerable  share  of  discretion  on  the  part  of  those  it 
governs. 

A  proposition  must  be  plain  to  be  adopted  by  the 
understanding  of  .a  people.  A  false  notion  which  is 
clear  and  precise  will  always  meet  with  a  greater  num- 
ber of  adherents  in  the  world  than  a  true  principle 
which  is  obscure  or  involved.  Hence  it  arises  that 
parties,  w:hich  are  like  small  communities  in  the  heart 
of  the  nation,  invariably  adopt  some  principle  or  some 
name  as  a  symbol,  which  very  inadequately  represents 
the  end  they  have  in  view  and  the  means  which  are  at 
their  disposal,  but  without  which  they  could  neither 
act  nor  subsist.  The  Governments  which  are  founded 
upon  a  single  principle  or  a  single  feeling  which  is 
easily  denned,  are  perhaps  hot  the  best,  but  they  are 
unquestionably  the  strongest  and  the  most  durable  in 
the  world. 


197 

In  examining  the  Constitution  of  the  United  States, 
which  is  the  most  perfect  Federal  Constitution  that 
ever  existed,  one  is  startled,  on  the  other  hand,  at  the 
variety  of  the  information  and  the  excellence  of  discre- 
tion which  it  presupposes  in  the  people  whom  it  is 
meant  to  govern.  The  Government  of  the  Union  de- 
pends entirely  upon  legal  fictions ;  the  Union  is  an  ideal 
nation  which  only  exists  in  the  mind,  and  whose  limits 
and  extent  can  only  be  discerned  by  the  understanding. 

When  once  the  general  theory  is  comprehended, 
numberless  difficulties  remain  to  be  solved  in  its  appli- 
cation ;  for  the  sovereignty  of  the  Union  is  so  involved 
in  that  of  the  States,  that  it  is  impossible  to  distinguish 
its  boundaries  at  the  first  glance.  The  whole  structure 
of  the  Government  is  artificial  and  conventional ;  and  it 
would  be  ill  adapted  to  a  people  Avhich  has  not  been  long 
accustomed  to  conduct  its  own  affairs,  or  to  one  in  which 
the  science  of  politics  has  not  descended  to  the  humblest 
classes  of  society.  I  have  never  been  more  struck  by 
the  good  sense  and  the  practical  judgement  of  the  Ame- 
ricans than  in  the  ingenious  devices  by  which  they  elude 
the  numberless  difficulties  resulting  from  their  Federal 
Constitution.  I  scarcely  ever  met  with  a  plain  Ame- 
rican citizen  who  could  not  distinguish,  with  surprising 
facility,  the  obligations  created  by  the  laws  of  Congress 
from  those  created  by  the  laws  of  his  own  State ;  and 
who,  after  having  discriminated  between  the  matters 
which  come  under  the  cognizance  of  the  Union,  and 
those  which  the  local  legislature  is  competent  to  regu- 
late, could  not  point  out  the  exact  limit  of  the  several 
jurisdictions  of  the  Federal  Courts  and  the  tribunals  of 
the  State. 

The  Constitution  of  the  United  States  is  like  those 
exquisite  productions  of  human  industry  which  ensure 
wealth  and  renown  to  their  inventors,  but  which  are 


198 

profitless  in  any  other  hands.  This  truth  is  exemplified 
by  the  condition  of  Mexico  at  the  present  time.  The 
Mexicans  were  desirous  of  establishing  a  Federal  system, 
and  they  took  the  Federal  Constitution  of  their  neigh- 
bours the  Anglo-Americans  as  their  model,  and  copied 
it  with  considerable  accuracy*.  But  although  they  had 
borrowed  the  letter  of  the  law,  they  were  unable  to 
create  or  to  introduce  the  spirit  and  the  sense  which 
give  it  life.  They  wrere  involved  in  ceaseless  embarrass- 
ments between  the  mechanism  of  their  double  Govern- 
ment ;  the  sovereignty  of  the  States  and  that  of  the 
Union  perpetually  exceeded  their  respective  privileges, 
and  entered  into  collision ;  and  to  the  present  day 
Mexico  is  alternately  the  victim  of  anarchy  and  the 
slave  of  military  despotism. 

The  second  and  the  most  fatal  of  all  the  defects  I 
have  alluded  to,  and  that  which  I  believe  to  be  inherent 
in  the  Federal  system,  is  the  relative  weakness  of  the 
Government  of  the  Union.  The  principle  upon  which 
all  confederations  rest  is  that  of  a  divided  sovereignty. 
The  legislator  may  render  this  partition  less  perceptible, 
he  may  even  conceal  it  for  a  time  from  the  public  eye, 
but  he  cannot  prevent  it  from  existing ;  and  a  divided 
sovereignty  must  always  be  less  powerful  than  an  entire 
supremacy.  The  reader  has  seen  in  the  remarks  I  have 
made  on  the  Constitution  of  the  United  States,  that  the 
Americans  have  displayed  singular  ingenuity  in  com- 
bining the  restriction  of  the  power  of  the  Union  within 
the  naiTow  limits  of  a  Federal  Government,  with  the 
semblance,  and  to  a  certain  extent  with  the  force,  of  a 
national  Government.  By  this  means  the  legislators  of 
the  Union  have  succeeded  in  diminishing,  though  not 
in  counteracting,  the  natural  danger  of  confederations. 

*  See  the  Mexican  Constitution  of  1824. 


199 

It  has  been  remarked  that  the  American  Government 
does  not  apply  itself  to  the  States,  but  that  it  imme- 
diately transmits  its  injunctions  to  the  citizens,  and 
compels  them  as  isolated  individuals  to  comply  with  its 
demands.  But  if  the  Federal  law  were  to  clash  with 
the  interests  and  the  prejudices  of  a  State,  it  might  be 
feared  that  all  the  citizens  of  that  State  would  conceive 
themselves  to  be  interested  in  the  cause  of  a  single  in- 
dividual who  should  refuse  to  obey.  If  all  the  citizens 
of  the  State  were  aggrieved  at  the  same  time  and  in  the 
same  manner  by  the  authority  of  the  Union,  the  Fede- 
ral Government  would  vainly  attempt  to  subdue  them 
individually ;  they  would  instinctively  unite  in  a  com- 
mon defence,  and  they  would  derive  a  ready-prepared 
organization  from  the  share  of  sovereignty  which  the 
institution  of  their  State  allows  them  to  enjoy.  Fiction 
would  give  wTay  to  reality,  and  an  organized  portion  of 
the  territory  might  then  contest  the  central  authority. 

The  same  observation  holds  good  with  regard  to  the 
Federal  jurisdiction.  If  the  courts  of  the  Union  vio- 
lated an  important  law  of  a  State  in  a  private  case,  the 
real,  if  not  the  apparent  contest  would  arise  between  the 
aggrieved  State  represented  by  a  citizen,  and  the  Union 
represented  by  its  courts  of  justice*. 

He  would  have  but  a  partial  knowledge  of  the  world 
who  should  imagine  that  it  is  possible,  by  the  aid  of 

*  For  instance,  the  Union  possesses  by  the  Constitution  the  right 
of  selling  unoccupied  lands  for  its  own  profit.  Supposing  that  the 
State  of  Ohio  should  claim  the  same  right  in  behalf  of  certain  terri- 
tories lying  within  its  boundaries,  upon  the  plea  that  the  Constitution 
refers  to  those  lands  alone  which  do  not  belong  to  the  jurisdiction  of 
any  particular  State,  and  consequently  should  choose  to  dispose  of 
them  itself,  the  litigation  would  be  carried  on  in  the  name  of  the 
purchasers  from  the  State  of  Ohio  and  the  purchasers  from  the  Union, 
and  not  in  the  names  of  Ohio  and  the  Union.  But  what  would  be- 
come of  this  legal  fiction  if  the  Federal  purchaser  was  confirmed  in 
his  right  by  the  courts  of  the  Union,  whilst  the  other  competitor  was 
ordered  to  retain  possession  by  the  tribunals  of  the  State  of  Ohio ,' 


200 

legal  fictions,  to  prevent  men  from  finding  out  and  em- 
ploying those  means  of  gratifying  their  passions  which 
have  been  left  open  to  them ;  and  it  may  be  doubted 
whether  the  American  legislators,  when  they  rendered 
a  collision  between  the  two  sovereignties  less  probable, 
destroyed  the  causes  of  such  a  misfortune.  But  it  may 
even  be  affirmed  that  they  wrere  unable  to  ensure  the 
preponderance  of  the  Federal  element  in  a  case  of  this 
kind.  The  Union  is  possessed  of  money  and  of  troops, 
but  the  affections  and  the  prejudices  of  the  people  are 
in  the  bosom  of  the  States.  The  sovereignty  of  the 
Union  is  an  abstract  being,  which  is  connected  with 
but  few  external  objects ;  the  sovereignty  of  the  States 
is  hourly  perceptible,  easily  understood,  constantly  ac- 
tive ;  and  if  the  former  is  of  recent  creation,  the  latter 
is  coeval  with  the  people  itself.  The  sovereignty  of  the 
Union  is  factitious,  that  of  the  States  is  natural,  and 
derives  its  existence  from  its  own  simple  influence,  like 
the  authority  of  a  parent.  The  supreme  power  of  the 
nation  only  affects  a  few  of  the  chief  interests  of  society ; 
it  represents  an  immense  but  remote  country,  and  claims 
a  feeling  of  patriotism  which  is  vague  and  ill  defined : 
but  the  authority  of  the  States  controls  every  individual 
citizen  at  every  hour  and  in  all  circumstances  ;  it  pro- 
tects his  property,  his  freedom,  and  his  life ;  and  when 
we  recollect  the  traditions,  the  customs,  the  prejudices 
of  local  and  familiar  attachment  with  w<hich  it  is  con- 
nected, we  cannot  doubt  of  the  superiority  of  a  power 
which  is  interwoven  with  every  circumstance  that  ren- 
ders the  love  of  one's  native  country  instinctive  in  the 
human  heart. 

Since  legislators  are  unable  to  obviate  such  danger- 
ous collisions  as  occur  between  the  two  sovereignties 
which  co-exist  in  the  Federal  system,  their  first  object 
must  be,  not  only  to  dissuade  the  confederate  States 


201 

from  warfare,  but  to  encourage  such  institutions  as  may 
promote  the  maintenance  of  peace.  Hence  it  results 
that  the  Federal  compact  cannot  be  lasting  unless  there 
exists  in  the  communities  which  are  leagued  together, 
a  certain  number  of  inducements  to  union  which  render 
their  common  dependence  agreeable,  and  the  task  of  the 
government  light ;  and  that  system  cannot  succeed  with- 
out the  presence  of  favourable  circumstances  added  to 
the  influence  of  good  laws.  All  the  peoples  which  have 
ever  formed  a  confederation  have  been  held  together  by 
a  certain  number  of  common  interests,  which  served  as 
the  intellectual  ties  of  association. 

But  the  sentiments  and  the  principles  of  man  must  be 
taken  into  consideration  as  well  as  his  immediateinterests. 
A  certain  uniformity  of  civilization  is  not  less  necessary 
to  the  durability  of  a  confederation,  than  a  uniformity 
of  interests  in  the  States  which  compose  it.  In  Swit- 
zerland the  difference  which  exists  between  the  Canton 
of  Uri  and  the  Canton  of  Vaud  is  equal  to  that  between 
the  fifteenth  and  the  nineteenth  centuries  ;  and,  properly 
speaking,  Switzerland  has  never  possessed  a  Federal 
Government.  The  Union  between  these  two  Cantons 
only  subsists  upon  the  map ;  and  their  discrepancies 
would  soon  be  perceived  if  an  attempt  were  made  by  a 
central  authority  to  prescribe  the  same  laws  to  the  whole 
territory. 

One  of  the  circumstances  which  most  powerfully  con- 
tribute to  support  the  Federal  Government  in  America 
is,  that  the  States  have  not  only  similar  interests,  a  com- 
mon origin,  and  a  common  tongue,  but  that  they  are 
also  arrived  at  the  same  stage  of  civilization ;  which 
almost  always  renders  a  union  feasible.  I  do  not  know 
of  any  European  nation,  how  small  soever  it  may  be, 
which  does  not  present  less  uniformity  in  its  different 
provinces  than  the  American  people,  which  occupies  a 

K  5 


202 

territory  as  extensive  as  one  half  of  Europe.  The  distance 
from  the  State  of  Maine  to  that  of  Georgia  is  reckoned 
at  about  one  thousand  miles ;  but  the  difference  between 
the  civilization  of  Maine  and  that  of  Georgia  is  slighter 
than  the  difference  between  the  habits  of  Normandy  and 
those  of  Britany.  Maine  and  Georgia,  which  are  placed 
at  the  opposite  extremities  of  a  great  empire,  are  con- 
sequently in  the  natural  possession  of  more  real  induce- 
ments to  form  a  confederation  than  Normandy  and 
Britany,  which  are  only  separated  by  a  bridge. 

The  geographical  position  of  the  country  contributed 
to  increase  the  facilities  which  the  American  legislators 
derived  from  the  manners  and  customs  of  the  inhabitants; 
and  it  is  to  this  circumstance  that  the  adoption  and  the 
maintenance  of  the  Federal  system  are  mainly  attributable. 

The  most  important  occurrence  which  can  mark  the 
annals  of  a  people  is  the  breaking  out  of  a  war.  In  war 
a  people  struggles  with  the  energy  of  a  single  man  against 
foreign  nations,  in  the  defence  of  its  very  existence.  The 
skill  of  a  Government,  the  good  sense  of  the  community, 
and  the  natural  fondness  which  men  entertain  for  their 
country,  may  suffice  to  maintain  peace  in  the  interior  of 
a  district,  and  to  favour  its  internal  prosperity  :  but  a 
nation  can  only  carry  on  a  great  war  at  the  cost  of  more 
numerous  and  more  painful  sacrifices  ;  and  to  suppose 
that  a  great  number  of  men  will  of  their  own  accord 
comply  with  these  exigencies  of  the  State,  is  to  betray 
an  ignorance  of  mankind.  All  the  peoples  which  have 
been  obliged  to  sustain  a  long  and  serious  warfare  have 
consequently  been  led  to  augment  the  power  of  their 
Government.  Those  which  have  not  succeeded  in  this 
attempt  have  been  subjugated.  A  long  war  almost  always 
places  nations  in  the  wretched  alternative  of  being  aban- 
doned to  ruin  by  defeat,  or  to  despotism  by  success. 
War  therefore  renders  the  symptoms  of  the  weakness 


203 

of  a  government  most  palpable  and  most  alarming ;  and 
I  have  shown  that  the  inherent  defect  of  Federal  Go- 
vernments is  that  of  being  weak. 

The  Federal  system  is  not  only  deficient  in  every  kind 
of  centralized  administration,  but  the  central  Govern- 
ment itself  is  imperfectly  organized,  which  is  invariably 
an  influential  cause  of  inferiority  when  the  nation  is  op- 
posed to  other  countries  which  are  themselves  governed 
by  a  single  authority.  In  the  Federal  Constitution  of 
the  United  States,  by  which  the  central  Government 
possesses  more  real  force,  this  evil  is  still  extremely 
sensible.  An  example  will  illustrate  the  case  to  the 
reader. 

The  Constitution  confers  upon  Congress  the  right  of 
"  calling  forth  militia  to  execute  the  laws  of  the  Union, 
suppress  insurrections,  and  repel  invasions  •"  and  another 
article  declares  that  the  President  of  the  United  States 
is  the  commander-in-chief  of  the  militia.  In  the  war  of 
1812  the  President  ordered  the  militia  of  the  Northern 
States  to  march  to  the  frontiers ;  but  Connecticut  and 
Massachusetts,  whose  interests  were  impaired  by  the  war, 
refused  to  obey  the  command.  They  argued  that  the 
Constitution  authorizes  the  Federal  Government  to  call 
forth  the  militia  in  cases  of  insurrection  or  invasion,  but 
that  in  the  present  instance  there  was  neither  invasion 
nor  insurrection.  They  added,  that  the  same  Constitu- 
tion which  conferred  upon  the  Union  the  right  of  calling 
forth  the  militia,  reserved  to  the  States  that  of  naming 
the  officers ;  and  that  consequently  (as  they  understood 
the  clause)  no  officer  of  the  Union  had  any  right  to  com- 
mand the  militia,  even  during  war,  except  the  President 
in  person :  and  in  this  case  they  were  ordered  to  join  an 
army  commanded  by  another  individual.  These  absurd 
and  pernicious  doctrines  received  the  sanction  not  only 
of  the  Governors  and  the  Legislativt  bodies,  but  also  of 


204 

the  courts  of  justice  in  both  States ;  and  the  Federal 
Government  was  constrainedto  raise  elsewhere  the  troops 
which  it  required*. 

The  only  safeguard  which  the  American  Union,  with 
the  relative  perfection  of  its  laws,  possesses  against  the 
dissolution  which  would  be  produced  by  a  great  war, 
lies  in  its  probable  exemption  from  that  calamity.  Placed 
in  the  centre  of  an  immense  continent,  which  offers  a 
boundless  field  for  human  industry,  the  Union  is  almost 
as  much  insulated  from  the  world  as  if  its  frontiers  w^ere 
girt  by  the  Ocean.  Canada  contains  only  a  million  of 
inhabitants,  and  its  population  is  divided  into  two  inimi- 
cal nations.  The  rigour  of  the  climate  limits  the  exten- 
sion of  its  territory,  and  shuts  up  its  ports  during  the 
six  months  of  winter.  From  Canada  to  the  Gulf  of 
Mexico  a  few  savage  tribes  are  to  be  met  with,  w7hich 
retire,  perishing  in  their  retreat,  before  six  thousand 
soldiers.  To  the  South,  the  Union  has  a  point  of  con- 
tact with  the  empire  of  Mexico ;  and  it  is  thence  that 
serious  hostilities  may  one  day  be  expected  to  arise. 
But  for  a  long  while  to  come  the  uncivilized  state  of  the 
Mexican  community,  the  depravity  of  its  morals,  and  its 
extreme  poverty,  will  prevent  that  country  from  ranking 
high  amongst  nations.  As  for  the  powers  of  Europe, 
they  are  too  distant  to  be  formidable. 

The  great  advantage  of  the  United  States  does  not, 
then,  consist  in  a  Federal  Constitution  which  allows  them 

*  Kent's  Commentaries,  vol.  i.  p.  244.  I  have  selected  an  example 
which  relates  to  a  time  posterior  to  the  promulgation  of  the  present 
Constitution.  If  I  had  gone  back  to  the  days  of  the  Confederation, 
I  might  have  given  still  more  striking  instances.  The  whole  nation 
was  at  that  time  in  a  state  of  enthusiastic  excitement ;  the  Revolution 
v.-as  represented  by  a  man  who  was  the  idol  of  the  people  ;  but  at  that 
very  period  Congress  had,  to  say  the  truth,  no  resources  at  all  at  its 
disposal.  Troops  and  supplies  were  perpetually  wanting.  The  best- 
devised  projects  failed  in  the  execution,  and  the  Union,  which  was 
constantly  on  the  verge^.  of  destruction,  was  saved  by  the  weakness  of 
its  enemies  far  more  than  by  its  own  strength. 


to  carry  on  great  wars,  but  in  a  geographical  position 
which  renders  such  enterprises  extremely  improbable. 

No  one  can  be  more  inclined  than  I  am  myself  to  ap- 
preciate the  advantages  of  the  Federal  system,  which  I 
hold  to  be  one  of  the  combinations  most  favourable  to 
the  prosperity  and  freedom  of  man.  I  envy  the  lot  of 
those  nations  which  have  been  enabled  to  adopt  it ;  but 
I  cannot  believe  that  any  confederate  peoples  could 
maintain  a  long  or  an  equal  contest  with  a  nation  of  si- 
milar strength  in  which  the  Government  should  be  cen- 
tralized. A  people  which  should  divide  its  sovereignty 
into  fractional  powers,  in  the  presence  of  the  great  mi- 
litary monarchies  of  Europe,  would,  in  my  opinion,  by 
that  very  act,  abdicate  its  power,  and  perhaps  its  exist- 
ence and  its  name.  But  such  is  the  admirable  position 
of  the  New  World,  that  man  has  no  other  enemy  than 
himself;  and  that  in  order  to  be  happy  and  to  be  free, 
it  suffices  to  seek  the  gifts  of  prosperity  and  the  know- 
ledge of  freedom. 


L  HAVE  hitherto  examined  the  institutions  of  the 
United  States;  I  have  passed  their  legislation  in  review, 
and  I  have  depicted  the  present  characteristics  of  politi- 
cal society  in  that  country.  But  a  sovereign  power  exists 
above  these  institutions  and  beyond  these  characteristic 
features  which  may  destroy  or  modify  them  at  its  plea- 
sure :  I  mean  that  of  the  people.  It  remains  to  be  shown 
in  what  manner  this  power,  which  regulates  the  laws^ 
acts:  its  propensities  and  its  passions  remain  to  be 
pointed  out,  as  well  as  the  secret  springs  which  retard, 
accelerate,  or  direct  its  irresistible  course ;  and  the  effects 
of  its  unbounded  authority,  with  the  destiny  which  is 
probably  reserved  for  it. 


CHAPTER  IX. 

WHY  THE  PEOPLE  MAY  STRICTLY  BE  SAID  TO  GOVERN 
IN  THE  UNITED  STATES. 

Ix  America  the  people  appoints  the  legislative  and  the 
executive  pbwer,  and  furnishes  the  jurors  who  punish  all 
offences  against  the  laws.  The  American  institutions 
are  democratic,  not  only  in  their  principle  but  in  all 
their  consequences;  and  the  people  elects  its  representa- 
tives directly,  and  for  the  most  part  annually,  in  order 
to  insure  their  dependence.  The  people  is  therefore  the 
real  directing  power ;  and  although  the  form  of  govern- 


208 

ment  is  representative,  it  is  evident  that  the  opinions, 
the  prejudices,  the  interests,  and  even  the  passions  of  the 
community  are  hindered  by  no  durable  obstacles  from 
exercising  a  perpetual  influence  on  society.  In  the 
United  States  the  majority  governs  in  the  name  of  the 
people,  as  is  the  case  in  all  the  countries  in  which  the 
people  is  supreme.  This  majority  is  principally  com- 
posed of  peaceable  citizens,  who,  either  by  inclination 
or  by  interest,  are  sincerely  desirous  of  the  welfare  of 
their  country.  But  they  are  surrounded  by  the  incessant 
agitation  of  parties,  which  attempt  to  gain  their  coopera- 
tion and  to  avail  themselves  of  their  support. 


CHAPTER  X. 

PARTIES    IN    THE    UNITED    STATES. 

Great  division  to  be  made  between  parties. — Parties  which  are  to  each 
other  as  rival  nations. — Parties  properly  so  called. — Difference 
between  great  and  small  parties. — Epochs  which  produce  them. — - 
Their  characteristics. — America  has  had  great  parties. — They  are 
e.xtinct. — Federalists. — Republicans. — Defeat  of  the  Federalists. — 
Difficulty  of  creating  parties  in  the  United  States. — What  is  done 
with  this  intention. — Aristocratic  or  democratic  character  to  be 
met  with  in  all  parties. — Struggle  of  General  Jackson  against 
the  Bank. 

A  GREAT  division  must  be  made  between  parties. 
Some  countries  are  so  large  that  the  different  popula- 
tions which  inhabit  them  have  contradictory  interests, 
although  they  are  the  subjects  of  the  same  Government; 
and  they  may  thence  be  in  a  perpetual  state  of  opposi- 
tion. In  this  case  the  different  fractions  of  the  people 
may  more  properly  be  considered  as  distinct  nations 
than  as  mere  parties ;  and  if  a  civil  war  breaks  out,  the 
struggle  is  carried  on  by  rival  peoples  rather  than  by 
factions  in  the  State. 


209 

But  when  the  citizens  entertain  different  opinions 
upon  subjects  which  affect  the  whole  country  alike,  such 
for  instance  as  the  principles  upon  which  the  govern- 
ment is  to  be  conducted,  then  distinctions  arise  which 
may  correctly  be  styled  parties.  Parties  are  a  necessary 
evil  in  free  governments ;  but  they  have  not  at  all  times 
the  same  character  and  the  same  propensities. 

At  certain  periods  a  nation  may  be  oppressed  by  such 
insupportable  evils  as  to  conceive  the  design  of  effecting 
a  total  change  in  its  political  constitution ;  at  other  times 
the  mischief  lies  still  deeper,  and  the  existence  of  society 
itself  is  endangered.  Such  are  the  times  of  great  re- 
volutions and  of  great  parties.  But  between  these 
epochs  of  misery  and  of  confusion  there  are  periods 
during  which  human  society  seems  to  rest,  and  mankind 
to  make  a  pause.  This  pause  is,  indeed,  only  apparent ; 
for  time  does  not  stop  its  course  for  nations  any  more 
than  for  men;  they  are  all  advancing  towards  a  goal 
with  which  they  are  unacquainted  ;  and  we  only  imagine 
them  to  be  stationary  w'hen  their  progress  escapes  pur 
observation ;  as  men  who  are  going  at  a  foot-pace  seem 
to  be  standing  still  to  those  who  run. 

But  however  this  may  be,  there  are  certain  epochs  at 
which  the  changes  that  take  place  in  the  social  and 
political  constitution  of  nations  are  so  slow  and  so  in- 
sensible, that  men  imagine  their  present  condition  to  be 
a  final  state  ;  and  the  human  mind,  believing  itself  to- 
be  firmly  based  upon  certain  foundations,  does  not  ex- 
tend its  researches  beyond  the  horizon  which  it  descries. 
These  are  the  times  of  small  parties  and  of  intrigue. 

The  political  parties  which  I  style  great  are  those 
which  cling  to  principles  more  than  to  their  consequences; 
to  general,  and  not  to  especial  cases  ;  to  ideas,  and  not 
to  men.  These  parties  are  usually  distinguished  by  a 
nobler  character,  by  more  generous  passions,  more  ge-. 


210 

nuine  convictions,  and  a  more  bold  and  open  conduct, 
than  the  others.  In  them,  private  interest,  which  al- 
ways plays  the  chief  part  in  political  passions,  is  more 
studiously  veiled  under  the  pretext  of  the  public  good ; 
and  it  may  even  be  sometimes  concealed  from  the  eyes 
of  the  very  person  whom  it  excites  and  impels. 

Minor  parties  are,  on  the  other  hand,  generally  de- 
ficient in  political  faith.  As  they  are  not  sustained  or 
dignified  by  a  lofty  purpose,  they  ostensibly  display  the 
egotism  of  their  character  in  their  actions.  They  glow 
with  a  factitious  zeal ;  their  language  is  vehement,  but 
their  conduct  is  timid  and  irresolute.  The  means  they 
employ  are  as  wretched  as  the  end  at  which  they  aim. 
Hence  it  arises  that  when  a  calm  state  of  things  succeeds 
a  violent  revolution,  the  leaders  of  society  seem  suddenly 
to  disappear,  and  the  powers  of  the  human  mind  to  lie 
concealed.  Society  is  convulsed  by  great  parties,  by 
minor  ones  it  is  agitated ;  it  is  torn  by  the  former,  by 
the  latter  it  is  degraded ;  and  if  these  sometimes  save  it 
by  a  salutary  perturbation,  those  invariably  disturb  it 
to  no  good  end. 

America  has  already  lost  the  great  parties  which  once 
divided  the  nation ;  and  if  her  happiness  is  considerably 
increased,  her  morality  has  suffered  by  their  extinction. 
AVhen  the  War  of  Independence  was  terminated,  and  the 
foundations  of  the  new  Government  were  to  be  laid 
down,  the  nation  was  divided  between  two  opinions, — 
two  opinions  which  are  as  old  as  the  Avorld,  and  which 
are  perpetually  to  be  met  with  under  all  the  forms  and 
all  the  names  which  have  ever  obtained  in  free  commu- 
nities,— the  one  tending  to  limit,  the  other  to  extend 
indefinitely,  the  power  of  the  people.  The  conflict  of 
these  two  opinions  never  assumed  that  degree  of  violence 
in  America  which  it  has  frequently  displayed  elsewhere. 
Both  parties  of  the  Americans  were  in  fact  agreed  upon 


211 

the  most  essential  points ;  and  neither  of  them  had  to 
destroy  a  traditionary  constitution,  or  to  overthrow  the 
structure  of  society,  in  order  to  ensure  its  own  triumph. 
In  neither  of  them,  consequently,  were  a  great  number 
of  private  interests  affected  by  success  or  by  defeat :  but 
moral  principles  of  a  high  order,  such  as  the  love  of 
equality  and  of  independence,  were  concerned  in  the 
struggle,  and  they  sufficed  to  kindle  violent  passions. 

The  party  which  desired  to  limit  the  power  of  the 
people,  endeavoured  to  apply  its  doctrines  more  espe- 
cially to  the  Constitution  of  the  Union,  whence  it 
derived  its  name  of  Federal.  The  other  party,  which 
affected  to  be  more  exclusively  attached  to  the  cause  of 
liberty,  took  that  of  Republican.  America  is  the  land  of 
democracy,  and  the  Federalists  were  always  in  a  minor- 
ity ;  but  they  reckoned  on  their  side  almost  all  the  great 
men  who  had  been  called  forth  by  the  War  of  Independ- 
ence, and  their  moral  influence  was  very  considerable. 
Their  cause  was,  moreover,  favoured  by  circumstances. 
The  ruin  of  the  Confederation  had  impressed  the  people 
with  a  dread  of  anarchy,  and  the  Federalists  did  not  fail 
to  profit  by  this  transient  disposition  of  the  multitude. 
For  ten  or  twelve  years  they  were  at  the  head  of  affairs, 
and  they  were  able  to  apply  some,  though  not  all,  of 
their  principles ;  for  the  hostile  current  was  becoming 
from  day  to  day  too  violent  to  be  checked  or  stemmed. 
In  1801  the  Republicans  got  possession  of  the  Govern- 
ment :  Thomas  Jefferson  was  named  President ;  and  he 
increased  the  influence  of  their  party  by  the  weight  of 
his  celebrity,  the  greatness  of  his  talents,  and  the  im- 
mense extent  of  his  popularity. 

The  means  by  which  the  Federalists  had  maintained 
their  position  were  artificial,  and  their  resources  were 
temporary :  it  was  by  the  virtues  or  the  talents  of  their 
leaders  that  they  had  risen  to  power.  When  the  Re- 


212 

publicans  attained  to  that  lofty  station,  their  opponents 
were  overwhelmed  by  utter  defeat.  An  immense  majority 
declared  itself  against  the  retiring  party,  and  the  Fede- 
ralists found  themselves  in  so  small  a  minority,  that 
they  at  once  despaired  of  their  future  success.  From 
that  moment  the  Republican  or  Democratic  party  has 
proceeded  from  conquest  to  conquest,  until  it  has  ac- 
quired absolute  supremacy  in  the  country.  The  Fede- 
ralists, perceiving  that  they  were  vanqiiished  without 
resource,  and  isolated  in  the  midst  of  the  nation,  fell  into 
two  divisions,  of  which  one  joined  the  victorious  Repub- 
licans, and  the  other  abandoned  its  rallying-point  and  its 
name.  Many  years  have  already  elapsed  since  they  ceased 
to  exist  as  a  party. 

The  accession  of  the  Federalists  to  power  was,  in  my 
opinion,  one  of  the  most  fortunate  incidents  which  ac- 
companied the  formation  of  the  great  American  Union  : 
they  resisted  the  inevitable  propensities  of  their  age 
and  of  the  country.  But  whether  their  theories  were 
good  or  bad,  they  had  the  defect  of  being  inapplicable^ 
as  a  system,  to  the  society  which  they  professed  to  go- 
vern; and  that  which  occurred  under  the  auspices  of 
Jefferson,  must,  therefore,  have  taken  place  sooner  or 
later.  But  their  Government  gave  the  new  republic 
time  to  acquire  a  certain  stability,  and  aftenvards  to 
support  the  rapid  growth  of  the  very  doctrines  which 
they  had  combated.  A  considerable  number  of  their 
principles  were  in  point  of  fact  embodied  in  the  political 
creed  of  their  opponents ;  and  the  Federal  Constitu- 
tion, which  subsists  at  the  present  day,  is  a  lasting 
monument  of  their  patriotism  and  their  wisdom. 

Great  political  parties  are  not,  then,  to  be  met  with 
in  the  United  States  at  the  present  time.  Parties,  in- 
deed, may  be  found'  which  threaten  the  future  tran- 
quillity of  the  Union ;  but  there  are  none  which  seem 


213 

to  contest  the  present  form  of  Government,  or  the  pre- 
sent course  of  society.  The  parties  by  which  the  Union  is 
menaced  do  not  rest  upon  abstract  principles,  but  upon 
temporal  interests.  These  interests,  disseminated  in 
the  provinces  of  so  vast  an  empire,  may  be  said  to  con- 
stitute rival  nations  rather  than  parties.  Thus,  upon  a 
recent  occasion,  the  North  contended  for  the  system  of 
commercial  prohibition,  and  the  South  took  up  arms 
in  favour  of  free  trade,  simply  because  the  North  is  a 
manufacturing,  and  the  South  an  agricultural,  district ; 
and  that  the  restrictive  system  which  was  profitable  to 
the  one,  was  prejudicial  to  the  other. 

In  the  absence  of  great  parties,  the  United  States 
abound  with  lesser  controversies ;  and  public  opinion 
is  divided  into  a  thousand  minute  shades  of  difference 
upon  questions  of  very  little  moment.  The  pains  which 
are  taken  to  create  parties  are  inconceivable,  and  at  the 
present  day  it  is  no  easy  task.  In  the  United  States 
there  is  no  religious  animosity,  because  all  religion  is 
respected,  and  no  sect  is  predominant ;  there  is  no  jea- 
lousy of  rank,  because  the  people  is  everything,  and 
none  can  contest  its  authority  ;  lastly,  there  is  no  public 
misery  to  serve  as  a  means  of  agitation,  because  the  phy- 
sical position  of  the  country  opens  so  wide  a  field  to  in- 
dustry, that  man  is  able  to  accomplish  the  most  surpris- 
ing undertakings  with  his  own  native  resources.  Never- 
theless, ambitious  men  are  interested  in  the  creation  of 
parties,  since  it  is  difficult  to  eject  a  person  from  autho- 
rity upon  the  mere  ground  that  his  place  is  coveted  by 
others.  The  skill  of  the  actors  in  the  political  world 
lies  therefore  in  the  art  of  creating  parties.  A  political 
aspirant  in  the  United  States  begins  by  discriminating 
his  own  interest,  and  by  calculating  upon  those  interests 
which  may  be  collected  around,  and  amalgamated  with 
it :  he  then  contrives  to  discover  some  doctrine  or  some 


214 

principle  which  may  suit  the  purposes  of  this  new  as- 
sociation, and  which  he  adopts  in  order  to  bring  for- 
ward his  party  and  to  secure  its  popularity  :  just  as  the 
imprimatur  of  a  King  was  in  former  days  incorporated 
Avith  the  volume  which  it  authorized,  but  to  which  it 
nowise  belonged.  JVhen  these  preliminaries  are  ter- 
minated, the  new  party  is  ushered  into  the  political 
world. 

All  the  domestic  controversies  of  the  Americans  at 
first  appear  to  a  stranger  to  be  so  incomprehensible  and 
so  puerile,  that  he  is  at  a  loss  whether  to  pity  a  people 
which  takes  such  arrant  trifles  in  good  earnest,  or  to 
envy  that  happiness  which  enables  it  to  discuss  them. 
But  when  he  comes  to  study  the  secret  propensities 
which  govern  the  factions  of  America,  he  easily  per- 
ceives that  the  greater  part  of  them  are  more  or  less 
connected  with  one  or  the  other  of  those  two  divisions 
which  have  always  existed  in  free  communities.  The 
deeper  we  penetrate  into  the  working  of  these  parties, 
the  more  do  we  perceive  that  the  object  of  the  one  is  to 
limit,  and  that  of  the  other  to  extend,  the  popular  autho- 
rity. I  do  not  assert  that  the  ostensible  end,  or  even 
that  the  secret  aim  of  American  parties  is  to  promote 
the  rule  of  aristocracy  or  democracy  in  the  country ; 
but  I  affirm  that  aristocratic  or  democratic  passions 
may  easily  be  detected  at  the  bottom  of  all  parties,  and 
that  although  they  escape  a  superficial  observation,  they 
are  the  main  point  and  the  very  soul  of  every  faction 
in  the  United  States. 

To  quote  a  recent  example  ;  when  the  President  at- 
tacked the  Bank,  the  country  was  excited,  and  parties 
were  formed  ;  the  well-informed  classes  rallied  round  the 
Bank,  the  common  people  round  the  President.  But  it 
must  not  be  imagined  that  the  people  had  formed  a  ra- 
tional opinion  upon  a  question  which  offers  so  many 


215 

difficulties  to  the  most  experienced  statesmen.  The 
Bank  is  a  great  establishment  which  enjoys  an  independ- 
ent existence,  and  the  people,  accustomed  to  make  and 
unmake  whatsoever  it  pleases,  is  startled  to  meet  with 
this  obstacle  to  its  authority.  In  the  midst  of  the  per- 
petual fluctuation  of  society,  the  community  is  irritated 
by  so  permanent  an  institution,  and  is  led  to  attack  it, 
in  order  to  see  whether  it  can  be  shaken  and  controlled, 
like  all  the  other  institutions  of  the  countiy. 


REMAINS  OP  THE  ARISTOCRATIC  PARTY  IN  THE 
UNITED  STATES. 

Secret  opposition  of  wealthy  individuals  to  democracy. — Their  re- 
tirement.— Their  taste  for  exclusive  pleasures  and  for  luxury  at 
home. — Their  simplicity  ahroad. — Their  affected  condescension 
towards  the  people. 

IT  sometimes  happens  in  a  people  amongst  which 
various  opinions  prevail,  that  the  balance  of  the  several 
parties  is  lost,  and  one  of  them  obtains  an  irresistible 
preponderance,  overpowers  all  obstacles,  harasses  its 
opponents,  and  appropriates  all  the  resources  of  society 
to  its  own  purposes.  The  vanquished  citizens  despair 
of  success,  and  they  conceal  their  dissatisfaction  in  si- 
lence and  in  a  general  apathy.  The  nation  seems  to  be 
governed  by  a  single  principle,  and  the  prevailing  party 
assumes  the  credit  of  having  restored  peace  and  unani- 
mity to  the  country.  But  this  apparent  unanimity  is 
merely  a  cloak  to  alarming  dissensions  and  perpetual 
opposition. 

This  is  precisely  what  occurred  in  America ;  when 
the  democratic  party  got  the  upper-hand,  it  took  exclu- 
sive possession  of  the  conduct  of  affairs,  and  from  that 
time  the  laws  and  the  customs  of  society  have  been 


216 

adapted  to  its  caprices.  At  the  present  day  the  more 
affluent  classes  of  society  are  so  entirely  removed  from 
the  direction  of  political  affairs  in  the  United  States, 
that  wealth,  far  from  conferring  a  right  to  the  exercise 
of  power,  is  rather  an  obstacle  than  a  means  of  attain- 
ing to  it.  The  wealthy  members  of  the  community 
abandon  the  lists,  through  unwillingness  to  contend, 
and  frequently  to  contend  in  vain,  against  the  poorest 
classes  of  their  fellow-citizens.  They  concentrate  all 
their  enjoyments  in  the  privacy  of  their  homes,  where 
they  occupy  a  rank  which  cannot  be  assumed  in  public  ; 
and  they  constitute  a  private  society  in  the  State,  which 
has  its  own  tastes  and  its  own  pleasures.  They  submit 
to  this  state  of  things  as  an  irremediable  evil,  but  they 
are  careful  not  to  show  that  they  are  galled  by  its  con- 
tinuance ;  it  is  not  uncommon  to  hear  them  laud  the 
delights  of  a  republican  government,  and  the  advantages 
of  democratic  institutions  when  they  are  in  public. 
Next  to  hating  their  enemies,  men  are  most  inclined  to 
natter  them. 

Mark,  for  instance,  that  opulent  citizen,  who  is  as 
anxious  as  a  Jew  of  the  middle  ages  to  conceal  his 
wealth.  His  dress  is  plain,  his  demeanour  unassuming ; 
but  the  interior  of  his  dwelling  glitters  with  luxury,  and 
none  but  a  few  chosen  guests  whom  he  haughtily  styles 
his  equals  are  allowed  to  penetrate  into  this  sanctuary. 
No  European  noble  is  more  exclusive  in  his  pleasures, 
or  more  jealous  of  the  smallest  advantages  which  liis 
privileged  station  confers  upon  him.  But  the  very  same 
individual  crosses  the  city  to  reach  a  dark  counting- 
house  in  the  centre  of  traffic,  where  every  one  may 
accost  him  who  pleases.  If  he  meets  his  cobbler  upon 
the  way,  they  stop  and  converse ;  the  two  citizens  dis- 
cuss the  affairs  of  the  State  in  which  they  have  an  equal 
interest,  and  they  shake  hands  before  they  part. 


217 

But  beneath  this  artificial  enthusiasm,  and  these  ob- 
sequious attentions  to  the  preponderating  power,  it  is 
easy  to  perceive  that  the  wealthy  members  of  the  com- 
munity entertain  a  hearty  distaste  to  the  democratic  in- 
stitutions of  their  country.  The  populace  is  at  once  the 
object  of  their  scorn  and  of  their  fears.  If  the  mal-ad- 
ministration  of  the  democracy  ever  brings  about  a  revo- 
lutionary crisis,  and  if  monarchical  institutions  ever  be- 
come practicable  in  the  United  States,  the  truth  of  what 
I  advance  will  become  obvious. 

The  two  chief  weapons  which  parties  use  in  order  to 
ensure  success  are,  the  public  press,  and  the  formation 
of  associations. 


CHAPTER  XL 

LIBERTY  OF  THE  PRESS  IN  THE  UNITED  STATES. 

Difficulty  of  restraining  the  liberty  of  the  press. — Particular  reasons 
which  some  nations  have  to  cherish  this  liberty.— The  liberty  of 
the  press  a  necessary  consequence  of  the  sovereignty  of  the  people 
as  it  is  understood  in  America. — Violent  language  of  the  periodical 
press  in  the  United  States. — Propensities  of  the  periodical  press.— 
Illustrated  by  the  United  States. — Opinion  of  the  Americans  upon 
the  repression  of  the  abuse  of  the  liberty  of  the  press  by  judicial 
prosecutions. — Reasons  for  which  the  press  is  less  powerful  in 
America  than  in  France. 

THE  influence  of  the  liberty  of  the  press  does  not  affect 
political  opinions  alone,  but  it  extends  to  all  the  opinions 
of  men,  and  it  modifies  customs  as  well  as  laws.  In 
another  part  of  this  work  I  shall  attempt  to  determine 
the  degree  of  influence  which  the  liberty  of  the  press 
has  exercised  upon  civil  society  in  the  United  States, 
and  to  point  out  the  direction  which  it  has  given  to  the 
ideas,  as  well  as  the  tone  which  it  has  imparted  to  tha 

VOL.  I.  L 


213 

character  and  the  feelings,  of  the  Anglo-Americans ;  but 
at  present  I  purpose  simply  to  examine  the  effects  pro- 
duced by  the  liberty  of  the  press  in  the  political  world. 

I  confess  that  I  do  not  entertain  that  firm  and  com- 
plete attachment  to  the  liberty  of  the  press,  which 
things  that  are  supremely  good  in  their  very  nature  are 
wont  to  excite  in  the  mind ;  and  I  approve  of  it  more 
from  a  recollection  of  the  evils  it  prevents,  than  from  a 
consideration  of  the  advantages  it  ensures. 

If  any  one  could  point  out  an  intermediate,  and  yet  a 
tenable  position,  between  the  complete  independence 
and  the  entire  subjection  of  the  public  expression  of 
opinion,  I  should  perhaps  be  inclined  to  adopt  it ;  but 
the  difficulty  is  to  discover  this  position.  If  it  is  your 
intention  to  correct  the  abuses  of  unlicensed  printing 
and  to  restore  the  use  of  orderly  language,  you  may  in 
the  first  instance  try  the  offender  by  a  jury  ;  but  if  the 
jury  acquits  him,  the  opinion  which  was  that  of  a  single 
individual  becomes  the  opinion  of  the  country  at  large. 
Too  much  and  too  little  has  therefore  hitherto  been 
done :  if  you  proceed,  you  must  bring  the  delinquent 
before  permanent  magistrates  ;  but  even  here  the  cause 
must  be  heard  before  it  can  be  decided ;  and  the  very 
principles  which  no  book  would  have  ventured  to  avow 
are  blazoned  forth  in  the  pleadings,  and  what  was  ob- 
scurely hinted  at  in  a  single  composition  is  then  repeated 
in  a  multitude  of  other  publications.  The  language  in 
which  a  thought  is  embodied  is  the  mere  carcass  of  the 
thought,  and  not  the  idea  itself;  tribunals  may  condemn 
the  form,  but  the  sense  and  spirit  of  the  work  is  too 
subtile  for  their  authority:  too  much  has  still  been 
done  to  recede,  too  little  to  attain  your  end ;  you  must 
therefore  proceed.  If  you  establish  a  censorship  of  the 
press,  the  tongue  of  the  public  speaker  will  still  make 
itself  heard,  and  you  have  only  increased  the  mischief. 


219 

The  powers  of  thought  do  not  rely,  like  the  powers  of 
physical  strength,  upon  the  number  of  their  mechanical 
agents,  nor  can  a  host  of  authors  be  reckoned  like  the 
troops  which  compose  an  army ;  on  the  contrary,  the 
authority  of  a  principle  is  often  increased  by  the  smallness 
of  the  number  of  men  by  whom  it  is  expressed.  The 
words  of  a  strong-minded  man,  which  penetrate  amidst 
the  passions  of  a  listening  assembly,  have  more  power 
than  the  vociferations  of  a  thousand  orators ;  and  if  it  be 
allowed  to  speak  freely  in  any  public  place,  the  conse- 
quence is  the  same  as  if  free  speaking  was  allowed  in 
every  village.  The  liberty  of  discourse  must  therefore 
be  destroyed  as  well  as  the  liberty  of  the  press ;  this  is 
the  necessary  term  of  your  efforts ;  but  if  your  object  was 
to  repress  the  abuses  of  liberty,  they  have  brought  you 
to  the  feet  of  a  despot.  You  have  been  led  from  the 
extreme  of  independence  to  the  extreme  of  subjection, 
without  meeting  with  a  single  tenable  position  for  shelter 
or  repose. 

There  are  certain  nations  which  have  peculiar  reasons 
for  cherishing  the  liberty  of  the  press,  independently  of 
the  general  motives  which  I  have  just  pointed  out : 
for  in  certain  countries  which  profess  to  enjoy  the 
privileges  of  freedom,  every  individual  agent  of  the 
Government  may  violate  the  laws  with  impunity,  since 
those  whom  he  oppresses  cannot  prosecute  him  before 
the  courts  of  justice.  In  this  case  the  liberty  of  the 
press  is  not  merely  a  guarantee,  but  it  is  the  only 
guarantee  of  their  liberty  and  their  security  which  the 
citizens  possess.  If  the  rulers  of  these  nations  proposed 
to  abolish  the  independence  of  the  press,  the  people 
would  be  justified  in  saying:  Give  us  the  right  of 
prosecuting  your  offences  before  the  ordinary  tribunals, 
and  perhaps  we  may  then  waive  our  right  of  appeal  to 
the  tribunal  of  public  opinion. 

L2 


220 

But  in  the  countries  in  which  the  doctrine  of  the 
sovereignty  of  the  people  ostensibly  prevails,,  the  censor- 
ship of  the  press  is  not  only  dangerous,  but  it  is  absurd. 
When  the  right  of  every  citizen  to  cooperate  in  the 
government  of  society  is  acknowledged,  every  citizen 
must  be  presumed  to  possess  the  power  of  discriminating 
between  the  different  opinions  of  his  contemporaries, 
and  of  appreciating  the  different  facts  from  which  in- 
ferences may  be  drawn.  The  sovereignty  of  the  people 
and  the  liberty  of  the  press  may  therefore  be  looked 
upon  as  correlative  institutions ;  just  as  the  censorship 
of  the  press  and  universal  suffrage  are  two  things  which 
are  irreconcileably  opposed,  and  Avhich  cannot  long  be 
retained  among  the  institutions  of  the  same  people. 
Not  a  single  individual  of  the  twelve  millions  who  in- 
habit the  territory  of  the  United  States  has  as  yet  dared 
to  propose  any  restrictions  to  the  liberty  of  the  press. 
The  first  newspaper  over  which  I  cast  my  eyes,  upon 
my  arrival  in  America,  contained  the  following  article : 

"  In  all  this  affair,  the  language  of  Jackson  has  been  that  of  a 
heartless  despot,  solely  occupied  with  the  preservation  of  his  own 
authority.  Ambition  is  his  crime,  and  it  will  be  his  punishment  too  : 
intrigue  is  his  native  element,  and  intrigue  will  confound  his  tricks, 
and  will  deprive  him  of  his  power:  he  governs  by  means  of  corrup- 
tion, and  his  immoral  practices  will  redound  to  his  shame  and  confu- 
feion.  His  conduct  in  the  political  arena  has  been  that  of  a  shameless 
and  lawless  gamester.  He  succeeded  at  the  time,  but  the  hour  of 
retribution  approaches,  and  he  will  be  obliged  to  disgorge  his  win- 
nings, to  throw  aside  his  false  dice,  and  to  end  his  days  in  some 
retirement,  where  he  may  curse  his  madness  at  his  leisure ;  for  re- 
pentance is  a  virtue  with  which  his  heart  is  likely  to  remain  for  ever 
unacquainted." 

It  is  not  uncommonly  imagined  in  France,  that  the 
virulence  of  the  press  originates  in  the  uncertain  social 
condition,  in  the  political  excitement,  and  the  general 
sense  of  consequent  evil,  which  prevail  in  that  country ; 
and  it  is  therefore  supposed  that  as  soon  as  society  has 


resumed  a  certain  degree  of  composure,  the  press  will 
abandon  its  present  vehemence.  I  am  inclined  to  think 
that  the  above  causes  explain  the  reason  of  the  extraor- 
dinary ascendency  it  has  acquired  over  the  nation,  but 
that  they  do  not  exercise  much  influence  upon  the  tone 
of  its  language.  The  periodical  press  appears  to  me  to 
be  actuated  by  passions  and  propensities  independent  of 
the  circumstances  in  which  it  is  placed ;  and  the  present 
position  of  America  corroborates  this  opinion. 

America  is  perhaps,  at  this  moment,  the  country  of 
the  whole  world  which  contains  the  fewer  germs  of 
revolution ;  but  the  press  is  not  less  destructive  in  its 
principles  than  in  France,  and  it  displays  the  same 
violence  without  the  same  reasons  for  indignation.  In 
America,  as  in  France,  it  constitutes  a  singular  power, 
so  strangely  composed  of  mingled  good  and  evil,  that  it 
is  at  the  same  time  indispensable  to  the  existence  of 
freedom,  and  nearly  incompatible  with  the  maintenance 
of  public  order.  Its  power  is  certainly  much  greater  in 
France  than  in  the  United  States ;  though  nothing  is 
more  rare  in  the  latter  country  than  to  hear  of  a  prose- 
cution having  been  instituted  against  it.  The  reason  of 
this  is  perfectly  simple:  the  Americans  having  once 
admitted  the  doctrine  of  the  sovereignty  of  the  people, 
apply  it  with  perfect  consistency.  It  was  never  their 
intention  to  found  a  permanent  state  of  things  with 
elements  which  undergo  daily  modifications  ;  and  there 
is  consequently  nothing  criminal  in  an  attack  upon  the 
existing  laws,  provided  it  be  not  attended  with  a  violent 
infraction  of  them.  They  are  moreover  of  opinion  that 
Courts  of  Justice  are  unable  to  check  the  abuses  of  the 
press ;  and  that  as  the  subtilty  of  human  language  per- 
petually eludes  the  severity  of  judicial  analysis,  offences 
of  this  nature  are  apt  to  escape  the  hand  which  attempts 
to  apprehend  them.  They  hold  that  to  act  with  efficacy 


222 

upon  the  press,  it  would  be  necessary  to  find  a  tribunal, 
not  only  devoted  to  the  existing  order  of  things,  but 
capable  of  surmounting  the  influence  of  public  opinion ; 
a  tribunal  which  should  conduct  its  proceedings  without 
publicity,  which  should  pronounce  its  decrees  without 
assigning  its  motives,  and  punish  the  intentions  even 
more  than  the  language  of  an  author.  Whosover  should 
have  the  power  of  creating  and  maintaining  a  tribunal 
of  this  kind,  would  waste  his  time  in  prosecuting  the 
liberty  of  the  press ;  for  he  would  be  the  supreme  ma- 
ster of  the  whole  community,  and  he  would  be  as  free  to 
rid  himself  of  the  authors  as  of  their  writings.  In  this 
question,  therefore,  there  is  no  medium  between  servitude 
and  extreme  licence ;  in  order  to  enjoy  the  inestimable 
benefits  which  the  liberty  of  the  press  ensures,  it  is 
necessary  to  submit  to  the  inevitable  evils  which  it 
engenders.  To  expect  to  acquire  the  former,  and  to 
escape  the  latter,  is  to  cherish  one  of  those  illusions  which 
commonly  mislead  nations  in  their  times  of  sickness, 
when,  tired  with  faction  and  exhausted  by  effort,  they 
attempt  to  combine  hostile  opinions  and  contrary  prin- 
ciples upon  the  same  soil. 

The  small  influence  of  the  American  journals  is 
attributable  to  several  reasons,  amongst  which  are  the 
following : 

The  liberty  of  writing,  like  all  other  liberty,  is  most 
formidable  when  it  is  a  novelty ;  for  a  people  which  has 
never  been  accustomed  to  cooperate  in  the  conduct  of 
state  affairs,  places  implicit  confidence  in  the  first  tribune 
who  arouses  its  attention.  The  Anglo-Americans  have 
enjoyed  this  liberty  ever  since  the  foundation  of  the 
settlements ;  moreover,  the  press  cannot  create  human 
passions  by  its  own  power,  however  skilfully  it  may 
kindle  them  where  they  exist.  In  America  politics  are 
discussed  with  animation  and  a  varied  activity,  but  they 


rarely  touch  those  deep  passions  which  are  excited 
whenever  the  positive  interest  of  a  part  of  the  commu- 
nity is  impaired :  but  in  the  United  States  the  interests 
of  the  community  are  in  a  most  prosperous  condition. 
A  single  glance  upon  a  French  and  an  American  news- 
paper is  sufficient  to  show  the  difference  which  exists 
between  the  two  nations  on  this  head.  In  France  the 
space  allotted  to  commercial  advertisements  is  very 
limited,  and  the  intelligence  is  not  considerable,  but  the 
most  essential  part  of  the  journal  is  that  which  contains 
the  discussion  of  the  politics  of  the  day.  In  America 
three  quarters  of  the  enormous  sheet  which  is  set  before 
the  reader  are  filled  with  advertisements,  and  the  remain- 
der is  frequently  occupied  by  political  intelligence  or 
trivial  anecdotes :  it  is  only  from  time  to  time  that  one 
finds  a  corner  devoted  to  passionate  discussions  like 
those  with  which  the  journalists  of  France  are  wont  to 
indulge  their  readers. 

It  has  been  demonstrated  by  observation,  and  dis- 
covered by  the  innate  sagacity  of  the  pettiest  as  well  as 
the  greatest  of  despots,  that  the  influence  of  a  power  is 
increased  in  proportion  as  its  direction  is  rendered  more 
central.  In  France  the  press  combines  a  twofold  cen- 
tralization ;  almost  all  its  power  is  centred  in  the  same 
spot,  and  vested  in  the  same  hands,  for  its  organs  are 
far  from  numerous.  The  influence  of  a  public  press  thus 
constituted,  upon  a  sceptical  nation,  must  be  unbounded. 
It  is  an  enemy  with  which  a  Government  may  sign  an 
occasional  truce,  but  which  it  is  difficult  to  resist  for 
any  length  of  time. 

Neither  of  these  kinds  of  centralization  exists  in 
America.  The  United  States  have  no  metropolis ;  the 
intelligence  as  well  as  the  power  of  the  country  are  di- 
spersed abroad,  and  instead  of  radiating  from  a  point, 
they  cross  each  other  in  every  direction ;  the  Americans 


224 

have  established  no  central  control  over  the  expression 
of  opinion,  any  more  than  over  the  conduct  of  business. 
These  are  circumstances  which  do  not  depend  on  human 
foresight ;  but  it  is  owing  to  the  laws  of  the  Union  that 
there  are  no  licences  to  be  granted  to  printers,  no  se- 
curities demanded  from  editors  as  in  France,  and  no  stamp 
duty  as  in  France  and  England.  The  consequence  of 
this  is,  that  nothing  is  easier  than  to  set  up  a  newspaper, 
and  a  small  number  of  readers  suffices  to  defray  the  ex- 
penses of  the  editor. 

The  number  of  periodical  and  occasional  publications 
which  appear  in  the  United  States  actually  surpasses 
belief.  The  most  enlightened  Americans  attribute  the 
subordinate  influence  of  the  press  to  this  excessive  disse- 
mination ;  and  it  is  adopted  as  an  axiom  of  political 
science  in  that  country,  that  the  only  way  to  neutralize 
the  effect  of  public  journals  is  to  multiply  them  indefi- 
nitely. I  cannot  conceive  that  a  truth  which  is  so  self- 
evident  should  not  already  have  been  more  generally 
admitted  in  Europe.  It  is  comprehensible  that  the  per- 
sons who  hope  to  bring  about  revolutions,  by  means  of 
the  press,  should  be  desirous  of  confining  its  action  to  a 
few  powerful  organs ;  but  it  is  perfectly  incredible  that 
the  partisans  of  the  existing  state  of  things,  and  the  na- 
tural supporters  of  the  laAVS,  should  attempt  to  diminish 
the  influence  of  the  press  by  concentrating  its  authority. 
The  Governments  of  Europe  seem  to  treat  the  press 
with  the  courtesy  of  the  knights  of  old ;  they  are  anxious 
to  furnish  it  with  the  same  central  power  which  they 
have  found  to  be  so  trusty  a  weapon,  in  order  to  enhance, 
the  glory  of  their  resistance  to  its  attacks. 

In  America  there  is  scarcely  a  hamlet  which  has  not 
its  own  newspaper.  It  may  readily  be  imagined  that 
neither  discipline  nor  unity  of  design  can  be  communi- 
cated to  so  multifarious  a  host,  and  each  one  is  conse- 


225 

quently  led  to  fight  under  his  own  standard.  All  the 
political  journals  of  the  United  States  are  indeed  arrayed 
on  the  side  of  the  administration  or  against  it ;  but  they 
attack  and  defend  it  in  a  thousand  different  ways.  They 
cannot  succeed  in  forming  those  great  currents  of  opinion 
which  overwhelm  the  most  solid  obstacles.  This  division 
of  the  influence  of  the  press  produces  a  variety  of  other 
consequences  which  are  scarcely  less  remarkable.  The 
facility  with  which  journals  can  be  established  induces 
a  multitude  of  individuals  to  take  a" part  in  them;  but 
as  the  extent  of  competition  precludes  the  possibility  of 
considerable  profit,  the  most  distinguished  classes  of 
society  ai'e  rarely  led  to  engage  in  these  undertakings. 
But  such  is  the  number  of  the  public  prints,  that  even 
if  they  were  a  source  of  wealth,  writers  of  ability  could 
not  be  found  to  direct  them  all.  The  journalists  of  the 
United  States  are  usually  placed  in  a  very  humble  posi- 
tion, with  a  scanty  education  and  a  vulgar  turn  of  mind. 
The  will  of  the  majority  is  the  most  general  of  laws,  and 
it  establishes  certain  habits  which  form  the  characteristics 
of  each  peculiar  class  of  society ;  thus  it  dictates  the 
etiquette  practised  at  courts  and  the  etiquette  of  the  bar. 
The  characteristics  of  the  French  journalist  consist  in  a 
violent,  but  frequently  an  eloquent  and  lofty,  manner  of 
discussing  the  politics  of  the  day ;  and  the  exceptions  to 
this  habitual  practice  are  only  occasional.  The  charac- 
teristics of  the  American  journalist  consist  in  an  open 
and  coarse  appeal  to  the  passions  of  the  populace  ;  and 
he  habitually  abandons  the  principles  of  political  science 
to  assail  the  characters  of  individuals,  to  track  them  into 
private  life,  and  disclose  all  their  weaknesses  and  errors. 
Nothing  can  be  more  deplorable  than  this  abuse  of 
the  powers  of  thought ;  I  shall  have  occasion  to  point 
out  hereafter  the  influence  of  the  newspapers  upon  the 
taste  and  the  morality  of  the  American  people ;  but  my 

L  5 


226 

i 

present  subject  exclusively  concerns  the  political  world. 
It  cannot  be  denied  that  the  effects  of  this  extreme  licence 
of  the  press  tend  indirectly  to  the  maintenance  of  public 
order.  The  individuals  who  are  already  in  the  possession 
of  a  high  station  in  the  esteem  of  their  fellow-citizens 
are  afraid  to  write  in  the  newspapers,  and  they  are  thus 
deprived  of  the  most  powerful  instrument  which  they  can 
use  to  excite  the  passions  of  the  multitude  to  their  own 
advantage*. 

The  personal  opinions  of  the  editors  have  no  kind  of 
weight  in  the  eyes  of  the  public :  the  only  use  of  a  jour- 
nal is,  that  it  imparts  the  knowledge  of  certain  facts ; 
and  it  is  only  by  altering  or  distorting  those  facts  that 
a  journalist  can  contribute  to  the  support  of  his  own 
views. 

But  although  the  press  is  limited  to  these  resources, 
its  influence  in  America  is  immense.  It  is  the  power 
which  impels  the  circulation  of  political  life  through  all 
the  districts  of  that  vast  territory.  Its  eye  is  constantly 
open  to  detect  the  secret  springs  of  political  designs, 
and  to  summon  the  leaders  of  all  parties  to  the  bar  of 
public  opinion.  It  rallies  the  interests  of  the  community 
round  certain  principles,  and  it  draws  up  the  creed  which 
factions  adopt;  for  it  affords  a  means  of  intercourse 
between  parties  which  hear,  and  which  address  each 
other,  without  ever  having  been  in  immediate  contact. 
When  a  great  number  of  the  organs  of  the  press  adopt 
the  same  line  of  conduct,  their  influence  becomes  irre- 
sistible ;  and  public  opinion,  when  it  is  perpetually 
assailed  from  the  same  side,  eventually  yields  to  the 
attack.  In  the  United  States  each  separate  journal 


*  They  only  write  in  the  papers  when  they  choose  to  address  the 
people  in  their  own  name;  as,  for  instance,  when  they  are  called 
upon  to  repel  calumnious  imputations,  and  to  correct  amis-statement 
of  facts. 


227 

exercises  but  little  authority  ;  but  the  power  of  the  pe- 
riodical press  is  only  second  to  that  of  the  people*. 


The  opinions  which  are  established  in  the  United  States  under  the 
empire  of  the  liberty  of  the  press,  are  frequently  more  firmly  rooted 
than  those  which  are  formed  elsewhere  under  the  sanction  of  a 


Ix  the  United  States  the  democracy  perpetually  raises 
fresh  individuals  to  the  conduct  of  public  affairs  ;  and 
the  measures  of  the  administration  are  consequently 
seldom  regulated  by  the  strict  rules  of  consistency  or  of 
order.  But  the  general  principles  of  the  Government 
are  more  stable,  and  the  opinions  most  prevalent  in  so- 
ciety are  generally  more  durable  than  in  many  other 
countries.  When  once  the  Americans  have  taken  up 
an  idea,  whether  it  be  well  or  ill  founded,  nothing  is 
more  difficult  than  to  eradicate  it  from  their  minds.  The 
same  tenacity  of  opinion  has  been  observed  in  England, 
where,  for  the  last  century,  greater  freedom  of  conscience 
and  more  invincible  prejudices  have  existed  than  in  all 
the  other  countries  of  Europe.  I  attribute  this  conse- 
quence to  a  cause  which  may  at  first  sight  appear  to 
have  a  very  opposite  tendency,  namely,  to  the  liberty  of 
the  press.  The  nations  amongst  which  this  liberty  ex- 
ists are  as  apt  to  cling  to  their  opinions  from  pride  as 
from  conviction.  They  cherish  them  because  they  hold 
them  to  be  just,  and  because  they  exercised  their  own 
free  will  in  choosing  them ;  and  they  maintain  them, 
not  only  because  they  are  true,  but  because  they  are 
their  own.  Several  other  reasons  conduce  to  the  same 
end. 

It  was  remarked  by  a  man  of  genius,  that  *  ignorance 
lies  at  the  two  ends  of  knowledge'.     Perhaps  it  would 

*  See  Appendix,  A. 


228 

have  been  more  correct  to  have  said,  that  absolute  con- 
victions are  to  be  met  with  at  the  two  extremities,  and 
that  doubt  lies  in  the  middle  ;  for  the  human  intellect 
may  be  considered  in  three  distinct  states,  which  fre- 
quently succeed  one  another. 

A  man  believes  implicitly,  because  he  adopts  a  pro- 
position without  inquiry.  He  doubts  as  soon  as  he  is 
assailed  by  the  objections  which  his  inquiries  may  have 
aroused :  but  he  frequently  succeeds  in  satisfying  these 
doubts,  and  then  he  begins  to  believe  afresh  :  he  no 
longer  lays  hold  on  a  truth  in  its  most  shadowy  and  un- 
certain form,  but  he  sees  it  clearly  before  him,  and  he 
advances  onwards  by  the  light  it  gives  him*. 

When  the  liberty  of  the  press  acts  upon  men  who  are 
in  the  first  of  these  three  states,  it  does  not  immediately 
disturb  their  habit  of  believing  implicitly  without  in- 
vestigation, but  it  constantly  modifies  the  objects  of 
their  intuitive  convictions.  The  human  mind  continues 
to  discern  but  one  point  upon  the  whole  intellectual 
horizon,  and  that  point  is  in  continual  motion.  Such 
are  the  symptoms  of  sudden  revolutions,  and  of  the  mis- 
fortunes which  are  sure  to  befall  those  generations  which 
abruptly  adopt  the  unconditional  freedom  of  the  press. 

The  circle  of  novel  ideas  is,  however,  soon  terminated; 
the  touch  of  experience  is  upon  them,  and  the  doubt 
and  mistrust  which  their  uncertainty  produces  become 
universal.  We  may  rest  assured  that  the  majority  of 
mankind  will  either  believe  they  know  not  wherefore,  or 
will  not  know  what  to  believe.  Few  are  the  beings  who 
carr  ever  hope  to  attain  to  that  state  of  rational  and  in- 
dependent conviction,  which  true  knowledge  can  beget, 
in  defiance  of  the  attacks  of  doubt. 

*  It  may,  however,  be  doubted  w'-.ether  this  rational  and  self- 
guiding  conviction  arouses  as  much  fervour  or  enthusiastic  devotedness 
in  men  as  their  first  dogmatical  belief. 


229 

It  has  been  remarked,  that  in  times  of  great  religious 
fervour  men  sometimes  change  their  religious  opinions; 
whereas  in  times  of  general  scepticism  every  one  clings 
to  his  own  persuasion.  The  same  thing  takes  place  in 
politics  under  -  the  liberty  of  the  press.  In  countries 
where  all  the  theories  of  social  science  have  been  con- 

N. 

tested  in  their  turn,  the  citizens  who  have  adopted  one 
of  them,  stick  to  it,  not  so  much  because  they  are  assured 
of  its  excellence,  as  because  they  are  not  convinced  of 
the  superiority  of  any  other.  In  the  present  age  men 
are  not  very  ready  to  die  in  defence  of  their  opinions, 
but  they  are  rarely  inclined  to  change  them ;  and  there 
are  fewer  martyrs  as  well  as  fewer  apostates. 

Another  still  more  valid  reason  may  yet  be  adduced : 
when  no  abstract  opinions  are  looked  upon  as  certain, 
men  cling  to  the  mere  propensities  and  external  interests 
of  their  position,  which  are  naturally  more  tangible  and 
more  permanent  than  any  opinions  in  the  world. 

It  is  not  a  question  of  easy  solution  whether  the  ari- 
stocracy or  the  democracy  is  most  fit  to  govern  a  country. 
But  it  is  certain  that  democracy  annoys  one  part  of  the 
community,  and  that  aristocracy  oppresses  another  part. 
When  the  question  is  reduced  to  the  simple  expression 
of  the  struggle  between  poverty  and  wealth,  the  tendency 
of  each  side  of  the  dispute  becomes  perfectly  evident 
without  further  controversy. 


230 


CHAPTER  XII. 

POLITICAL  ASSOCIATIONS  IN  THE  UNITED  STATES. 

Daily  use  which  the  Anglo-Americans  make  of  the  right  of  associa- 
tion.— Three  kinds  of  political  associations. — In  what  manner  the 
Americans  apply  the  representative  system  to  associations. — Dan- 
gers resulting  to  the  State. — Great  Convention  of  1831  relative  to 
the  Tariff. — Legislative  character  of  this  Convention. — Why  the 
unlimited  exercise  of  the  right  of  association  is  less  dangerous  in 
the  United  States  than  elsewhere. — Why  it  may  be  looked  upon  as 
necessary. — Utility  of  associations  in  a  democratic  people. 

IN  no  country  in  the  world  has  the  principle  of  associa- 
tion been  more  successfully  used,  or  more  unsparingly 
applied  to  a  multitude  of  different  objects,  than  in  Ame- 
rica. Besides  the  permanent  associations  which  are  esta- 
blished by  law  under  the  names  of  townships,  cities,  and 
counties,  a  vast  number  of  others  are  formed  and  main- 
tained by  the  agency  of  private  individuals. 

The  citizen  of  the  United  States  is  taught  from  his 
earliest  infancy  to  rely  upon  his  own  exertions,  in  order 
to  resist  the  evils  and  the  difficulties  of  life ;  he  looks 
upon  the  social  authority  with  an  eye  of  mistrust  and 
anxiety,  and  he  only  claims  its  assistance  when  he  is 
quite  unable  to  shift  without  it.  This  habit  may  even 
be  traced  in  the  schools  of  the  rising  generation,  where 
the  children  in  their  games  are  wont  to  submit  to  rules 
which  they  have  themselves  established,  and  to  punish 
misdemeanours  which  they  have  themselves  defined. 
The  same  spirit  pervades  every  act  of  social  life.  If  a 
stoppage  occurs  in  a  thoroughfare,  and  the  circulation 
of  the  public  is  hindered,  the  neighbours  immediately 
constitute  a  deliberative  body ;  and  this  extemporaneous 
assembly  gives  rise  to  an  executive  power,  which  re- 
medies the  inconvenience,  before  anybody  has  thought 


231 

of  recurring  to  an  authority  superior  to  that  of  the 
persons  immediately  concerned.  If  the  public  pleasures 
are  concerned,  an  association  is  formed  to  provide  for 
the  splendour  and  the  regularity  of  the  entertainment. 
Societies  are  formed  to  resist  enemies  which  are  exclu- 
sively of  a  moral  nature,  and  to  diminish  the  vice  of  in- 
temperance: in  the  United  States  associations  are  esta- 
blished to  promote  public  order,  commerce,  industry, 
morality,  and  religion ;  for  there  is  no  end  which  the 
human  will,  seconded  by  the  collective  exertions  of  indi- 
viduals, despairs  of  attaining. 

I  shall  hereafter  have  occasion  to  show  the  effects  of 
association  upon  the  course  of  society,  and  I  must  con- 
fine myself  for  the  present  to  the  political  world.  When 
once  the  right  of  association  is  recognised,  the  citizens 
may  employ  it  in  several  different  ways. 

An  association  consists  simply  in  the  public  assent 
which  a  number  of  individuals  give  to  certain  doctrines ; 
and  in  the  engagement  which  they  contract  to  promote 
the  spread  of  those  doctrines  by  their  exertions.  The 
right  of  associating  with  these  views  is  very  analogous  to 
the  liberty  of  unlicensed  writing;  but  societies  thus 
formed  possess  more  authority  than  the  press.  When 
an  opinion  is  represented  by  a  society,  it  necessarily 
assumes  a  more  exact  and  explicit  form.  It  numbers 
its  partisans,  and  compromises  their  welfare  in  its  cause: 
they,  on  the  other  hand,  become  acquainted  with  each 
other,  and  their  zeal  is  increased  by  their  number.  An 
association  unites  the  efforts  of  minds,  which  have  a  ten- 
dency to  diverge,  in  one  single  channel,  and  urges  them 
vigorously  towards  one  single  end  which  it  points  out. 

The  second  degree  in  the  right  of  association  is  the 
power  of  meeting.  When  an  association  is  allowed  to 
establish  centres  of  action  at  certain  important  points  in 
the  country,  its  activity  is  increased,  and  its  influence 


232 

extended.  Men  have  the  opportunity  of  seeing  each 
other ;  means  of  execution  are  more  readily  combined ; 
and  opinions  are  maintained  with  a  degree  of  warmth 
and  energy  which  written  language  cannot  approach. 

Lastly,  in  the  exercise  of  the  right  of  political  associa- 
tion, there  is  a  third  degree  :  the  partisans  of  an  opinion 
may  unite  in  electoral  bodies,  and  choose  delegates  to 
represent  them  in  a  central  assembly.  This  is,  properly 
speaking,  the  application  of  the  representative  system  to 
a  party. 

Thus,  in  the  first  instance,  a  society  is  formed  between 
individuals  professing  the  same  opinion,  and  the  tie  which 
keeps  it  together  is  of  a  purely  intellectual  nature :  in 
the  second  case,  small  assemblies  are  formed  which  only 
represent  a  fraction  of  the  party.  Lastly,  in  the  third 
case,  they  constitute  a  separate  nation  in  the  midst  of 
the  nation,  a  government  within  the  Government.  Their 
delegates,  like  the  real  delegates  of  the  majority,  repre^ 
sent  the  entire  collective  force  of  their  party ;  and  they 
enjoy  a  certain  degree  of  that  national  dignity  and  great 
influence  which  belong  to  the  chosen  representatives  of 
the  people.  It  is  true  that  they  have  not  the  right  of 
making  the  laws  ;  but  they  have  the  power  of  attacking 
those  which  are  in  being,  and  of  drawing  up  beforehand 
those  which  they  may  afterwards  cause  to  be  adopted. 

If,  in  a  people  which  is  imperfectly  accustomed  to  the 
exercise  of  freedom,  or  which  is  exposed  to  violent 
political  passions,  a  deliberating  minority,  which  con- 
fines itself  to  the  contemplation  of  future  laws,  be  placed 
in  juxtaposition  to  the  legislative  majority^  I  cannot  but 
believe  that  public  tranquillity  incurs  very  great  risks 
in  that  nation.  There  is  doubtless  a  very  wide  difference 
between  proving  that  one  law  is  in  itself  better  than 
another,  and  proving  that  the  former  ought  to  be  sub- 
stituted for  the  latter.  But  the  imagination  of  the 


233 

populace  is  very  apt  to  overlook  this  difference,,  which 
is  so  apparent  to  the  minds  of  thinking  men.  It  some- 
times happens  that  a  nation  is  divided  into  two  nearly 
equal  parties,  each  of  which  affects  to  represent  the 
majority.  If,  in  immediate  contiguity  to  the  directing 
power,  another  power  be  established,  which  exercises 
almost  as  much  moral  authority  as  the  former ;  it  is  not 
to  be  believed  that  it  will  long  be  content  to  speak 
without  acting ;  or  that  it  will  always  be  restrained  by 
the  abstract  consideration  of  the  nature  of  associations, 
which  are  meant  to  direct  but  not  to  enforce  opinions, 
to  suggest  but  not  to  make  the  lawrs. 

The  more  we  consider  the  independence  of  the  press 
in  its  principal  consequences,  the  more  are  we  convinced 
that  it  is  the  chief,  and,  so  to  speak,  the  constitutive 
element  of  freedom  in  the  modern  world.  A  nation 
which  is  determined  to  remain  free,  is  therefore  right  in- 
demanding  the  unrestrained  exercise  of  this  independ- 
ence. But  the  unrestrained  liberty  of  political  associa- 
tion cannot  be  entirely  assimilated  to  the  liberty  of  the 
press.  The  one  is  at  the  same  time  less  necessary  and 
more  dangerous  than  the  other.  A  nation  may  confine 
it  within  certain  limits  without  forfeiting  any  part  of 
its  self-control ;  and  it  may  sometimes  be  obliged  to  do 
so  in  order  to  maintain  its  own  authority. 

In  America  the  liberty  of  association  for  political 
purposes  is  unbounded.  An  example  will  show  in 
the  clearest  light  to  what  an  extent  this  privilege  is 
tolerated. 

The  question  of  the  Tariff,  or  of  free  trade,  produced 
a  great  manifestation  of  party-feeling  in  America :  the 
Tariff  was  not  only  a  subject  of  debate  as  a  matter  of 
opinion,  but  it  exercised  a  favourable  or  a  prejudicial 
influence  upon  several  very  powerful  interests  of  the 
States.  The  North  attributed  a  great  portion  of  its 


234 

prosperity,  and  the  South  all  its  sufferings,  to  this  system ; 
in  so  much,  that  for  a  long  time  the  Tariff  was  the  sole 
source  of  the  political  animosities  which  agitated  the 
Union. 

In  1831,  when  the  dispute  was  raging  with  the  utmost 
virulence,  a  private  citizen  of  Massachusetts  proposed  to 
all  the  enemies  of  the  Tariff,  by  means  of  the  public 
prints,  to  send  delegates  to  Philadelphia  in  order  to  con- 
sult together  upon  the  means  which  wrere  most  fitted  to 
promote  the  freedom  of  trade.  This  proposal  circulated 
in  a  few  days  from  Maine  to  New  Orleans  by  the  power 
of  the  printing  press :  the  opponents  of  the  Tariff  adopted 
it  with  enthusiasm ;  meetings  were  formed  on  all  sides, 
and  delegates  were  named.  The  majority  of  these  indi- 
viduals were  well  known,  and  some  of  them  had  earned 
a  considerable  degree  of  celebrity.  South  Carolina  alone, 
which  afterwards  took  up  arms  in  the  same  cause,  sent 
sixty-three  delegates.  On  the  1st  October  1831,  this 
assembly,  which  according  to  the  American  custom  had 
taken  the  name  of  a  Convention,  met  at  Philadelphia; 
it  consisted  of  more  than  two  hundred  members.  Its 
debates  were  public,  and  they  at  once  assumed  a  legis- 
lative character ;  the  extent  of  the  powers  of  Congress, 
the  theories  of  free  trade,  and  the  different  clauses  of  the 
Tariff,  were  discussed  in  turn.  At  the  end  of  ten  days' 
deliberation  the  Convention  broke  up,  after  having 
published  an  address  to  the  American  people,  in  which 
it  declared : 

I.  That  Congress  had  not  the  right  of  making  a  Tariff, 
and  that  the  existing  Tariff  was  unconstitutional ; 

II.  That  the  prohibition  of  free  trade  was  prejudicial 
to  the  interests  of  all  nations,  and  to  that  of  the  Ameri- 
can people  in  particular. 

It  must  be  acknowledged  that  the  unrestrained  liberty 
of  political  association  has  not  hitherto  produced,  in  the 


235 

United  States,  those  fatal  consequences  which  might 
perhaps  be  expected  from  it  elsewhere,     The  right  of 
association  was   imported  from  England,   and  it   has 
always  existed  in  America ;  so  that  the  exercise  of  this 
privilege  is  now  amalgamated  with  the  manners   and 
customs  of  the  people.     At  the  present  time,  the  liberty 
of  association  is  become  a  necessary  guarantee  against 
the  tyranny  of  the  majority.     In  the  United  States,  as 
soon  as  a  party  is  become  preponderant,  all  the  public 
authority  passes  under  its  control :  its  private  supporters 
occupy  all  the  places,  and  have  ah1  the  force  of  the  admi- 
nistration at  their  disposal.     As  the  most  distinguished 
partisans  of  the  other  side  of  the  question  are  unable  to 
surmount  the  obstacles  which  exclude  them  from  power, 
they  require  some  means   of  establishing  themselves 
upon  their  own  basis,  and  of  opposing  the  moral  au- 
thority of  the  minority  to  the  physical  power  which 
domineers   over  it.     Thus   a    dangerous  expedient   is 
used  to  obviate  a  stiU  more  formidable  danger. 

The  omnipotence  of  the  majority  appears  to  me  to 
present  such  extreme  perils  to  the  American  Republics, 
that  the  dangerous  measure  which  is  used  to  repress  it 
seems  to  be  more  advantageous  than  prejudicial.  And 
here  I  am  about  to  advance  a  proposition  which  may 
remind  the  reader  of  what  I  said  before  in  speaking  of 
municipal  freedom:  There  are  no  countries  in  W7hich 
associations  are  more  needed,  to  prevent  the  despotism 
of  faction  or  the  arbitrary  power  of  a  prince,  than  those 
which  are  democratically  constituted.  In  aristocratic 
nations,  the  body  of  the  nobles  and  the  more  opulent 
part  of  the  community  are  in  themselves  natural  associa- 
tions, which  act  as  checks  upon  the  abuses  of  power. 
In  countries  in  which  these  associations  do  not  exist,  if 
private  individuals  are  unable  to  create  an  artificial  and  a 
temporary  substitute  for  them,  1  can  imagine  no  perma- 


236 

nent  protection  against  the  most  galling  tyranny ;  and 
a  great  people  may  be  oppressed  by  a  small  faction,  or 
by  a  single  individual,  with  impunity. 

The  meeting  of  a  great  political  Convention  (for  there 
are  Conventions  of  all  kinds),  which  may  frequently  be- 
come a  necessary  measure,  is  always  a  serious  occurrence, 
even  in  America,  and  one  which  is  never  looked  forward 
to,  by  the  judicious  friends  of  the  country,  without  alarm. 
This  was  very  perceptible  in  the  Convention  of  1831,  at 
which  the  exertions  of  all  the  most  distinguished  mem- 
bers of  the  assembly  tended  to  moderate  its  language, 
and  to  restrain  the  subjects  which  it  treated  within  cer- 
tain limits.  It  is  probable,  in  fact,  that  the  Convention 
of  1831  exercised  a  very  great  influence  upon  the  minds 
of  the  malcontents,  and  prepared  them  for  the  open  revolt 
against  the  commercial  laws  of  the  Union,  which  took 
place  in  1832. 

It  cannot  be  denied  that  the  unrestrained  liberty  of 
association  for  political  purposes  is  the  privilege  which 
a  people  is  longest  in  learning  how  to  exercise.  If  it 
does  not  throw  the  nation  into  anarchy,  it  perpetually 
augments  the  chances  of  that  calamity.  On  one  point, 
however,  this  perilous  liberty  offers  a  security  against 
dangers  of  another  kind ;  in  countries  where  associa- 
tions are  free,  secret  societies  are  unknown.  In  Ame- 
rica there  are  numerous  factions,  but  no  conspira- 
cies. 


Different  ways  in  which  the  right  of  association  is  understood  in 
Europe  and  in  the  United  States. — Different  use  which  is  made 
of  it. 

THE  most  natural  privilege  of  man,  next  to  the  right  of 
acting  for  himself,  is  that  of  combining  his  exertions 
with  those  gf  his  fellow-creatures,  and  of  acting  in  com- 


237 

raon  with  them.  I  am  therefore  led  to  conclude  that 
the  right  of  association  is  almost  as  inalienable  as  the 
right  of  personal  liberty.  No  legislator  can  attack  it 
without  impairing  the  very  foundations  of  society. 
Nevertheless,  if  the  liberty  of  association  is  a  fruitful 
source  of  advantages  and  prosperity  to  some  nations, 
it  may  be  perverted  or  carried  to  excess  by  others,  and 
the  element  of  life  may  be  changed  into  an  element  of 
destruction.  A  comparison  of  the  different  methods 
which  associations  pursue,  in  those  countries  in  which 
they  are  managed  with  discretion,  as  well  as  in  those 
where  liberty  degenerates  into  license,  may  perhaps  be 
thought  useful  both  to  governments  and  to  parties. 

The  greater  part  of  Europeans  look  upon  an  associa- 
tion as  a  weapon  which  is  to  be  hastily  fashioned,  and 
immediately  tried  in  the  conflict.  A  society  is  formed 
for  discussion,  but  the  idea  of  impending  action  prevails 
in  the  minds  of  those  who  constitute  it :  it  is,  in  fact,  an 
army  ;  and  the  time  given  to  parley  serves  to  reckon  up 
the  strength  and  to  animate  the  courage  of  the  host, 
after  which  they  direct  their  march  against  the  enemy. 
Resources  which  lie  within  the  bounds  of  the  law  may 
suggest  themselves,  to  the  persons  who  compose  it,  as 
means,  but  never  as  the  only  means,  of  success. 

Such,  however,  is  not  the  manner  in  which  the  right 
of  association  is  understood  in  the  United  States.  In 
America,  the  citizens  who  form  the  minority  associate, 
in  order,  in  the  first  place,  to  show  their  numerical 
strength,  and  so  to  diminish  the  moral  authority  of  the 
majority ;  and,  in  the  second  place,  to  stimulate  compe- 
tition, and  to  discover  those  arguments  which  are  most 
fitted  to  act  upon  the  majority:  for  they  always  enter- 
tain hopes  of  drawing  over  their  opponents  to  their  own 
side,  and  of  afterwards  disposing  of  the  supreme  power  in 
their  name.  Political  associations  in  the  United  States 
are  therefore  peaceable  in  their  intentions,  and  strictly 


.238 

legal  in  the  means  which  they  employ ;  and  they  assert 
with  perfect  truth,  that  they  only  aim  at  success  by  law- 
ful expedients. 

The  difference  which  exists  between  the  Americans 
and  ourselves  depends  on  several  causes.     In  Europe 
there  are  numerous  parties  so  diametrically  opposed  to 
the  majority,  that  they  can  never  hope  to  acquire  its 
support,  and  at  the  same  time  they  think  that  they  are 
sufficiently  strong  in  themselves  to  struggle  and  to  de- 
fend their  cause.     When  a  party  of  this  kind  forms  an 
association,  its  object  is,  not  to  conquer,  but  to  fight. 
In  America,  the  individuals  who  hold  opinions  very 
much  opposed  to  those  of  the  majority,  are  no  sort  of 
impediment  to  its  power ;  and  all  other  parties  hope  to 
win  it  over  to  their  own  principles  in  the  end.     The  ex- 
ercise of  the  right  of  association  becomes  dangerous  in 
proportion  to  the  impossibility  which  excludes  great 
parties  from  acquiring  the  majority.     In  a  country  like 
the  United  States,  in  which  the  differences  of  opinion 
are  mere  differences  of  hue,  the  right  of  association  may 
remain  unrestrained  without  evil  consequences.     The 
inexperience  of  many  of  the  European  nations  in  the 
enjoyment  of  liberty,  leads  them  only  to  look  upon  the 
liberty  of  association  as  a  right  of  attacking  the  Govern- 
ment.    The  first  notion  which  presents  itself  to  a  party, 
as  well  as  to  an  individual,  when  it  has  acquired  a  con- 
sciousness of  its  own  strength,  is  that  of  violence  :  the 
notion  of  persuasion  arises  at  a  later  period,  and  is  only 
derived  from  experience.   The  English,  who  are  divided 
into  parties  which  differ  most  essentially  from  each  other, 
rarely  abuse  the  right  of  association,  because  they  have 
long  been  accustomed  to  exercise  it.     In  France,  the 
passion  for  war  is  so  intense,  that  there  is  no  underta- 
king so  mad,  or  so  injurious  to  the  welfare  of  the  State, 
that  a  man  does  not  consider  himself  honoured  in  de- 
fending it,  at  the  risk  of  his  life. 


239 

But  perhaps  the  most  powerful  of  the  causes  which 
tend  to  mitigate  the  excesses  of  political  association  in 
the  United  States  is  Universal  Suffrage.  In  countries 
in  which  universal  suffrage  exists,  the  majority  is  never 
doubtful,  because  neither  party  can  pretend  to  repre- 
sent that  portion  of  the  community  which  has  not  voted. 
The  associations  which  are  formed  are  aware,  as  well  as 
the  nation  at  large,  that  they  do  not  represent  the  ma- 
jority: this  is,  indeed,  a  condition  inseparable  from 
their  existence ;  for  if  they  did  represent  the  prepon- 
derating power,  they  would  change  the  law  instead  of 
soliciting  its  reform.  The  consequence  of  this  is  that 
the  moral  influence  of  the  Government  which  they 
attack  is  very  much  increased,  and  their  own  power  is 
very  much  enfeebled. 

In  Europe  there  are  few  associations  which  do  not 
affect  to  represent  the  majority,  or  which  do  not  believe 
that  they  represent  it.  This  conviction  or  this  preten- 
sion tends  to  augment  their  force  amazingly,  and  con- 
tributes no  less  to  legalize  their  measures.  Violence 
may  seem  to  be  excusable  in  defence  of  the  cause  of  op- 
pressed right.  Thus  it  is,  in  the  vast  labyrinth  of 
human  laws,  that  extreme  liberty  sometimes  corrects 
the  abuses  of  license,  and  that  extreme  democracy  ob- 
viates the  dangers  of  democratic  government.  In 
Europe,  associations  consider  themselves,  in  some  de- 
gree, as  the  legislative  and  executive  councils  of  the 
people,  which  is  unable  to  speak  for  itself.  In  America, 
where  they  only  represent  a  minority  of  the  nation, 
they  argue  and  they  petition. 

The  means  which  the  associations  of  Europe  employ 
are  in  accordance  with  the  end  which  they  propose  to 
obtain.  As  the  principal  aim  of  these  bodies  is  to  act 
and  not  to  debate,  to  fight  rather  than  to  persuade, 
they  are  naturally  led  to  adopt  a  form  of  organization 
which  differs  from  the  ordinary  customs  of  civil  bodies, 


240 

and  which  assumes  the  habits  and  the  maxims  of  mili- 
tary life.  They  centralize  the  direction  of  their  re- 
sources as  much  as  possible,  and  they  entrust  the 
power  of  the  whole  party  to  a  very  small  number  of 
leaders. 

The  members  of  these  associations  reply  to  a  watch- 
word, like  soldiers  on  duty ;  they  profess  the  doctrine 
of  passive  obedience ;  say  rather,  that  in  uniting  toge- 
ther they  at  once  abjure  the  exercise  of  their  own  judge- 
ment and  free  will :  and  the  tyrannical  control,  which 
these  societies  exercise,  is  often  far  more  insupportable 
than  the  authority  possessed  over  society  by  the  Go- 
vernment which  they  attack.  Their  moral  force  is 
much  diminished  by  these  excesses,  and  they  lose  the 
powerful  interest  which  is  always  excited  by  a  struggle 
between  oppressors  and  the  oppressed.  The  man  w7ho 
in  given  cases  consents  to  obey  his  fellows  with  servility, 
and  who  submits  his  activity,  and  even  his  opinions,  to 
their  control,  can  have  no  claim  to  rank  as  a  free 
citizen. 

The  Americans  have  also  established  certain  forms  of 
government  which  are  applied  to  their  associations,  but 
these  are  invariably  borrowed  from  the  forms  of  the 
civil  administration.  The  independence  of  each  indivi- 
dual is  formally  recognised  ;  the  tendency  of  the  mem- 
bers of  the  association  points,  as  it  does  in  the  body  of 
the  community,  towards  the  same  end,  but  they  are  not 
obliged  to  follow  the  same  track.  No  one  abjures  the 
exercise  of  his  reason  and  his  free  will ;  but  every  one 
exerts  that  reason  and  that  will  for  the  benefit  of  a  com- 
mon undertaking. 


241 


APPENDIX. 


APPENDIX  A.— Page  4. 

FOR  information  concerning  all  the  countries  of  the  West  which 
have  not  been  visited  by  Europeans,  consult  the  account  of  two 
expeditions  undertaken  at  the  expense  of  Congress  by  Major 
Long.  This  traveller  particularly  mentions,  on  the  subject  of 
the  great  American  desert,  that  a  line  may  be  drawn  nearly 
parallel  to  the  20th  degree  of  longitude*  (meridian  of  Wash- 
ington), beginning  from  the  Red  River  and  ending  at  the  river 
Platte.  From  this  imaginary  line  to  the  Rocky  Mountains, 
which  bound  the  valley  of  the  Mississippi  on  the  West,  lie 
immense  plains,  which  are  almost  entirely  covered  with  sand 
incapable  of  cultivation,  or  scattered  over  with  masses  of  gra- 
nite. In  summer  these  plains  are  quite  destitute  of  water,  and 
nothing  is  to  be  seen  on  them  but  herds  of  buffaloes  and  wild 
horses.  Some  hordes  of  Indians  are  also  found  there,  but  in 
no  great  numbers. 

Major  Long  was  told  that  in  travelling  northwards  from  the 
river  Platte  you  find  the  same  desert  lying  constantly  on  the 
left ;  but  he  was  unable  to  ascertain  the  truth  of  this  report. 
(Long's  Expedition,  vol.  ii.  p.  361.) 

However  worthy  of  confidence  may  be  the  narrative  of  Major 
Long,  it  must  be  remembered  that  he  only  passed  through  the 
country  of  which  he  speaks,  without  deviating  widely  from  the 
line  which  he  had  traced  out  for  his  journey. 

*  The  20th  degree  of  longitude  according  to  the  meridian  of  Washing- 
ton, agrees  very  nearly  with  the  97th  degree  on  the  meridian  of  Greenwich. 

VOL.  I.  M 


242 


APPENDIX  B.— Page  6. 

South  America,  in  the  regions  between  the  tropics,  produces 
an  incredible  profusion  of  climbing-plants,  of  which  the  Flora 
of  the  Antilles  alone  presents  us  with  forty  different  species. 

Among  the  most  graceful  of  these  shrubs  is  the  Passion- 
flower, which,  according  to  Descourtiz,  grows  with  such  luxu- 
riance in  the  Antilles,  as  to  climb  trees  by  means  of  the  ten- 
drils with  which  it  is  provided,  and  form  moving  bowers  of 
rich  and  elegant  festoons,  decorated  with  blue  and  purple 
flowers,  and  fragrant  with  perfume.  (Vol.  i.  p.  265.) 

The  Mimosa  scandens  (Acacia  a  grandes  gousses)  is  a  creeper 
of  enormous  and  rapid  growth,  which  climbs  from  tree  to  tree, 
and  sometimes  covers  more  than  half  a  league.  (Vol.  iii.p.  227.) 


APPENDIX  C.— Page  8. 

The  languages  which  are  spoken  by  the  Indians  of  America, 
from  the  Pole  to  Cape  Horn,  are  said  to  be  all  formed  upon 
the  same  model,  and  subject  to  the  same  grammatical  rules  ; 
whence  it  may  fairly  be  concluded  that  all  the  Indian  nations 
sprang  from  the  same  stock. 

Each  tribe  of  the  American  continent  speaks  a  different 
dialect ;  but  the  number  of  languages,  properly  so  called,  is 
very  small,  a  fact  which  tends  to  prove  that  the  nations  of  the 
New  World  had  not  a  very  remote  origin. 

Moreover,  the  languages  of  America  have  a  great  degree  of 
regularity  ;  from  which  it  seems  probable  that  the  tribes  which 
employ  them  had  not  undergone  any  great  revolutions,  or  been 
incorporated,  voluntarily  or  by  constraint,  with  foreign  nations. 
For  it  is  generally  the  union  of  several  languages  into  one 
which  produces  grammatical  irregularities. 

It  is  not  long  since  the  American  languages,  especially  those 
of  the  North,  first  attracted  the  serious  attention  of  philolo- 
gists, when  the  discovery  was  made,  that  this  idiom  of  a  bar- 
barous people  was  the  product  of  a  complicated  system  of  ideas 


243 


and  very  learned  combinations.  These  languages  were  found 
to  be  very  rich,  and  great  pains  had  been  taken  at  their  for- 
mation to  render  them  agreeable  to  the  ear. 

The  grammatical  system  of  the  Americans  differs  from  all 
others  in  several  points,  but  especially  in  the  following  : 

Some  nations  of  Europe,  amongst  others  the  Germans,  have 
the  power  of  combining  at  pleasure  different  expressions,  and 
thus  giving  a  complex  sense  to  certain  words.  The  Indians 
have  given  a  most  surprising  extension  to  this  power,  so  as  to 
arrive  at  the  means  of  connecting  a  great  number  of  ideas  with 
a  single  term.  This  will  be  easily  understood  with  the  help 
of  an  example  quoted  by  Mr.  Duponceau,  in  the  Memoirs  of 
the  Philosophical  Society  of  America. 

"  A  Delaware  woman  playing  with  a  cat  or  a  young  dog," 
says  this  writer,  "  is  heard  to  pronounce  the  word  kuligatschis ; 
which  is  thus  composed  :  k  is  the  sign  of  the  second  person, 
and  signifies  '  thou'  or  '  thy'  ;  uli  is  a  part  of  the  word  wulit, 
which  signifies  '  beautiful',  '  pretty' ;  gat  is  another  fragment 
of  the  word  wichgal,  which  means  '  paw'';  and  lastly,  schis  is 
a  diminutive  giving  the  idea  of  smallness.  Thus  in  one  word 
the  Indian  woman  has  expressed,  '  Thy  pretty  little  paw.'  " 

Take  another  example  of  the  felicity  with  which  the  savages 
of  America  have  composed  their  words.  A  young  man  of  De- 
laware is  called  J9i7ape.  This  word  is  formed  from  pilsit,  chaste, 
innocent;  and  lenape,  man  ;  viz.  man  in  his  purity  and  inno- 
cence. 

This  facility  of  combining  words  is  most  remarkable  in  the 
strange  formation  of  their  verbs.  The  most  complex  action  is 
often  expressed  by  a  single  verb,  which  serves  to  convey  all 
the  shades  of  an  idea  by  the  modification  of  its  construction. 

Those  who  may  wish  to  examine  more  in  detail  this  subject, 
which  I  have  only  glanced  at  superficially,  should  read  : 

1.  The  correspondence  of  Mr.  Duponceau  and  the  Rev.  Mr. 
Hecwelder  relative  to  the  Indian  languages ;  which  is  to  be 
found  in  the  first  volume  of  the  Memoirs  of  the  Philosophical 
Society  of  America,  published  at  Philadelphia,  1819,  by  Abra- 
ham Small ;  vol.  i.  p.  356—464. 

M2 


244 

2.  The  grammar  of  the  Delaware  or  Lenape  language  by 
Geiberger,  and  the  preface  of  Mr.  Duponceau.     All  these  are 
in  the  same  collection,  vol.  iii. 

3.  An  excellent  account  of  these  works  which  is  at  the  end 
of  the  6th  volume  of  the  American  Encyclopaedia. 


APPENDIX  D.— Page  10. 

See  in  Charlevoix,  vol.  i.  p.  235,  the  history  of  the  first  war 
which  the  French  inhabitants  of  Canada  carried  on,  in  1610, 
against  the  Iroquois.  The  latter,  armed  with  bows  and  arrows, 
offered  a  desperate  resistance  to  the  French  and  their  allies- 
Charlevoix  is  not  a  great  painter,  yet  he  exhibits  clearly 
enough,  in  this  narrative,  the  contrast  between  the  European 
manners  and  those  of  savages,  as  well  as  the  different  way  in 
which  the  two  races  of  men  understood  the  sense  of  honour. 

When  the  French,  says  he,  seized  upon  the  beaver-skins 
which  covered  the  Indians  who  had  fallen,  the  Hurons,  their 
allies,  were  greatly  offended  at  this  proceeding  ;  but  without 
hesitation  they  set  to  work  in  their  usual  manner,  inflicting 
horrid  cruelties  upon  the  prisoners,  and  devouring  one  of 
those  who  had  been  killed,  which  made  the  Frenchmen  shudder. 
The  barbarians  prided  themselves  upon  a  scrupulousness  which 
they  were  surprised  at  not  finding  in  our  nation  ;  and  could 
not  understand  that  there  was  less  to  reprehend  in  the  strip- 
ping of  dead  bodies  than  in  the  devouring  of  their  flesh  like 
wild  beasts. 

Charlevoix  in  another  place  (vol.  i.  p.  230,)  thus  describes 
the  first  torture  of  which  Champlain  was  an  eye-witness,  and 
the  return  of  the  Hurons  into  their  own  village. 

Having  proceeded  about  eight  leagues,  says  he,  our  allies 
halted ;  and  having  singled  out  one  of  their  captives,  they  re- 
proached him  with  all  the  cruelties  which  he  had  practised 
upon  the  warriors  of  their  nation  who  had  fallen  into  his  hands, 
and  told  him  that  he  might  expect  to  be  treated  in  like  manner ; 
adding,  that  if  he  had  any  spirit  he  would  prove  it  by  singing. 


245 

He  immediately  chanted  forth  his  death-song,  and  then  his 
war- song,  and  all  the  songs  he  knew,  "  but  in  a  very  mournful 
strain,"  says  Champlain,  who  was  not  then  aware  that  all  sa- 
vage music  has  a  melancholy  character.  The  tortures  which 
succeeded,  accompanied  by  all  the  horrors  which  we  shall  men- 
tion hereafter,  terrified  the  French,  who  made  every  effort  to 
put  a  stop  to  them,  but  in  vain.  The  following  night  one  of 
the  Hurons  having  dreamt  that  they  were  pursued,  the  retreat 
was  changed  to  a  real  flight,  and  the  savages  never  stopped 
until  they  were  out  of  the  reach  of  danger. 

The  moment  they  perceived  the  cabins  of  their  own  village, 
they  cut  themselves  long  sticks,  to  which  they  fastened  the 
scalps  which  had  fallen  to  their  share,  and  carried  them  in  tri- 
umph. At  this  sight,  the  women  swam  to  the  canoes,  where 
they  received  the  bloody  scalps  from  the  hands  of  their  hus- 
bands, and  tied  them  round  their  necks. 

The  warriors  offered  one  of  these  horrible  trophies  to  Cham- 
plain  ;  they  also  presented  him  with  some  bows  and  arrows, 
— the  only  spoils  of  the  Iroquois  which  they  had  ventured  to 
seize, — entreating  him  to  show  them  to  the  King  of  France. 

Champlain  lived  a  whole  winter  quite  alone  among  these 
barbarians,  without  being  under  any  alarm  for  his  person  or 
property. 


APPENDIX  E.— Page  29. 

Although  the  puritanical  strictness  which  presided  over 
the  establishment  of  the  English  colonies  in  America  is  now 
much  relaxed,  remarkable  traces  of  it  are  still  found  in  their 
habits  and  their  laws.  In  1792,  at  the  very  time  when  the 
antichristian  republicof  France  began  itsephemeral  existence, 
the  legislative  body  of  Massachusetts  promulgated  the  following 
law,  to  compel  the  citizens  to  observe  the  Sabbath.  We  give 
the  preamble  and  the  principal  articles  of  this  law,  which  is 
worthy  of  the  reader's  attention. 

"  Whereas,"  says  the  legislator,  "  the  observation  of  the 


246 

Sunday  is  an  affair  of  public  interest ;  in  as  much  as  it  pro- 
duces a  necessary  suspension  of  labour,  leads  men  to  reflect 
upon  the  duties  of  life  and  the  errors  to  which  human  nature 
is  liable,  and  provides  for  the  public  and  private  worship  of 
God  the  creator  and  governor  of  the  universe,  and  for  the  per- 
formance of  such  acts  of  charity  as  are  the  ornament  and  com- 
fort of  Christian  societies  : — 

"  Whereas  irreligious  or  light-minded  persons,forgetting  the 
duties  which  the  Sabbath  imposes,  and  the  benefits  which  these 
duties  confer  on  society,  ure  known  to  profane  its  sanctity,  by 
following  their  pleasures  or  their  affairs ;  this  way  of  acting 
being  contrary  to  their  own  interests  as  Christians,  and  cal- 
culated to  annoy  those  who  do  not  follow  their  example  ;  being 
also  of  great  injury  to  society  at  large,  by  spreading  a  taste 
for  dissipation  and  dissolute  manners  ; 

"  Be  it  enacted  and  ordained  by  the  Governor,  Council,  and 
Representatives  convened  in  General  Court  of  Assembly,  that 
all  and  every  person  and  persons  shall  on  that  day  carefully 
apply  themselves  to  the  duties  of  religion  and  piety,  that  no 
tradesman  or  labourer  shall  exercise  his  ordinary  calling,  and 
that  no  game  or  recreation  shall  be  used  on  the  Lord's  Day, 
upon  pain  of  forfeiting  ten  shillings. 

"  That  no  one  shall  travel  on  that  day,  or  any  part  thereof, 
under  pain  of  forfeiting  twenty  shillings  ;  that  no  vessel  shall 
leave  a  harbour  of  the  colony  ;  that  no  persons  shall  keep  out- 
side the  meeting-house  during  the  time  of  public  worship,  or 
profane  the  time  by  playing  or  talking,  on  penalty  of  five 
shillings. 

"  Public-houses  shall  not  entertain  any  other  than  strangers 
or  lodgers,  under  penalty  of  five  shillings  for  every  person  found 
drinking  and  abiding  therein. 

"  Any  person  in  health,  who,  without  sufficient  reason,  shall 
omit  to  worship  God  in  public  during  three  months,  shall  be 
condemned  to  a  fine  of  ten  shillings. 

"  Any  person  guilty  of  misbehaviour  in  a  place  of  public 
worship  shall  be  fined  from  five  to  forty  shillings. 

"  These  laws  are  to  be  enforced  by  the  tithing-men  of  each 


247 

township,  who  have  authority  to  visit  public-houses  on  the 
Sunday.  The  innkeeper  who  shall  refuse  them  admittance 
shall  be  fined  forty  shillings  for  such  offence. 

"  The  tithing-men  are  to  stop  travellers,  and  require  of 
them  their  reason  for  being  on  the  road  on  Sunday  :  any  one 
refusing  to  answer  shall  be  sentenced  to  pay  a  fine  not  ex- 
ceeding five  pounds  sterling.  If  the  reason  ^iven  by  the  tra- 
veller be  not  deemed  by  the  tithing-man  sufficient,  he  may 
bring  the  traveller  before  the  justice  of  the  peace  of  the  di- 
strict." (Law  of  the  Stk  March,  1792  :  General  Laws  of  Mas- 
sachusetts, vol.  i.  p.  410.) 

On  the  llth  March,  1797,  a  new  law  increased  the  amount 
of  fines,  half  of  which  was  to  be  given  to  the  informer.  (Same 
collection,  vol.  ii.  p.  525.) 

On  the  16th  February,  1816,  a  new  law  confirmed  these 
same  measures.  (Same  collection,  vol.  ii.  p.  405.) 

Similar  enactments  exist  in  the  laws  of  the  State  of  New 
York,  revised  in  1827  and  1828.  (See  Revised  Statutes, 
Part  I.  chapter  20,  p.  675.)  In  these  it  is  declared  that  no 
one  is  allowed  on  the  Sabbath  to  sport,  to  fish,  to  play  at  games, 
or  to  frequent  houses  where  liquor  is  sold.  No  one  can  travel, 
except  in  case  of  necessity. 

And  this  is  not  the  only  trace  which  the  religious  strictness 
and  austere  manners  of  the  first  emigrants  have  left  behind 
them  in  the  American  laws. 

In  the  revised  statutes  of  the  State  of  New  York,  vol.  i.  p. 
662,  is  the  following  clause  : — 

"  Whoever  shall  win  or  lose  in  the  space  of  twenty- four 
hours,  by  gaming  or  betting,  the  sum  of  twenty-five  dollars, 
shall  be  found  guilty  of  a  misdemeanour,  and,  upon  conviction, 
shall  be  condemned  to  pay  a  fine  equal  to  at  least  five  times 
the  value  of  the  sum  lost  or  won ;  which  shall  be  paid  to  the 
inspector  of  the  poor  of  the  township.  He  that  loses  twenty- 
five  dollars  or  more  may  bring  an  action  to  recover  them  ;  and 
if  he  neglects  to  do  so,  the  inspector  of  the  poor  may  prose- 
cute the  winner,  and  oblige  him  to  pay  into  the  poor's  box 
both  the  sum  he  has  gained  and  three  times  as  much  besides. 


248 

The  laws  we  quote  from  are  of  recent  date  ;  but  they  are 
unintelligible  without  going  back  to  the  very  origin  of  the 
colonies.  I  have  no  doubt  that  in  our  days  the  penal  part  of 
these  laws  is  very  rarely  applied.  Laws  preserve  their  inflex- 
ibility long  after  the  manners  of  a  nation  have  yielded  to  the 
influence  of  time.  It  is  still  true,  however,  that  nothing  strikes 
a  foreigner  on  his  arrival  in  America,  more  forcibly  than  the 
regard  paid  to  the  Sabbath. 

There  is  one,  in  particular,  of  the  large  American  cities,  in 
which  all  social  movements  begin  to  be  suspended  even  on. 
Saturday  evening.  You  traverse  its  streets  at  the  hour  at 
which  you  expect  men  in  the  middle  of  life  to  be  engaged  in 
business,  and  young  people  in  pleasure  ;  and  you  meet  with 
solitude  and  silence.  Not  only  have  all  ceased  to  work,  but 
they  appear  to  have  ceased  to  exist.  Neither  the  movements 
of  industry  are  heard,  nor  the  accents  of  joy,  nor  even  the 
confused  murmur  which  arises  from  the  midst  of  a  great  city. 
Chains  are  hung  across  the  streets  in  the  neighbourhood  of 
the  churches ;  the  half-closed  shutters  of  the  houses  scarcely 
admit  a  ray  of  sun  into  the  dwellings  of  the  citizens.  Now 
and  then  you  perceive  a  solitary  individual  who  glides  silently 
along  the  deserted  streets  and  lanes. 

Next  day,  at  early  dawn,  the  rolling  of  carriages,  the  noise 
of  hammers,  the  cries  of  the  population,  begin  to  make  them- 
selves heard  again.  The  city  is  awake.  An  eager  crowd 
hastens  towards  the  resort  of  commerce  and  industry  ;  every- 
thing around  you  bespeaks  motion,  bustle,  hurry.  A  feverish 
activity  succeeds  to  the  lethargic  stupor  of  yesterday  ;  you 
might  almost  suppose  that  they  had  but  one  day  to  acquire 
wealth  and  to  enjoy  it. 


APPENDIX  F.— Page  35. 

It  is  unnecessary  for  me  to  say,  that  in  the  chapter  which 
has  just  been  read,  I  have  not  had  the  intention  of  giving 


249 

a  history  of  America.  My  only  object  was  to  enable  the 
reader  to  appreciate  the  influence  which  the  opinions  and  man- 
ners of  the  first  emigrants  had  exercised  upon  the  fate  of  the 
different  colonies,  and  of  the  Union  in  general.  I  have  there- 
fore con  fined  myself  to  the  quotation  of  a  few  detached  frag- 
ments. 

I  do  not  know  whether  I  am  deceived,  but  it  appears  to 
me  that  by  pursuing  the  path  which  I  have  merely  pointed 
out,  it  would  be  easy  to  present  such  pictures  of  the  American 
republics  as  would  not  be  unworthy  the  attention  of  the  pub- 
lic, and  could  not  fail  to  suggest  to  the  statesman  matter  for 
reflection. 

Not  being  able  to  devote  myself  to  this  labour,  I  am 
anxious  to  render  it  easy  to  others ;  and  for  this  purpose,  I 
subjoin  a  short  catalogue  and  analysis  of  the  works  which 
seem  to  me  the  most  important  to  consult. 
-  At  the  head  of  the  general  documents  which  it  would  be 
advantageous  to  examine,  I  place  the  work  entitled  An  His- 
torical Collection  of  State  Papers,  and  other  authentic  Docu- 
•ments,  intended  as  materials  for  a  History  of  the  United  States 
of  America  ;  by  Ebenezer  Hasard.  The  first  volume  of  this 
compilation,  which  was  printed  at  Philadelphia  in  1792,  con- 
tains a  literal  copy  of  all  the  charters  granted  by  the  Crown 
of  England  to  the  emigrants,  as  well  as  the  principal  acts  of 
the  colonial  governments,  during  the  commencement  of  their 
existence.  Amongst  other  authentic  documents,  we  here  find 
a  great  many  relating  to  the  affairs  of  New  England  and  Vir- 
ginia during  this  period.  The  second  volume  is  almost  entirely 
devoted  to  the  acts  of  the  Confederation  of  1643.  This  Federal 
compact,  which  was  entered  into  by  the  colonies  of  New 
England  with  the  view  of  resisting  the  Indians,  was  the  first 
instance  of  union  afforded  by  the  Anglo-Americans.  There 
were  besides  many  other  confederations  of  the  same  nature, 
before  the  famous  one  of  1776,  which  brought  about  the 
independence  of  the  colonies. 

Each  colony  has,  besides,  its  own  historic  monuments,  some 
of  which  are  extremely  curious  ;  beginning  with  Virginia,  the 

M  5 


250 

State  which  was  first  peopled.  The  earliest  historian  of  Vir- 
ginia was  its  founder,  Capt.  John  Smith.  Capt.  Smith  has 
left  us  an  octavo  volume,  entitled  The3  yenerall  Historic  of 
Virginia  and  New  England,  by  Captain  John  Smith,  sometymes 
Governor  in  those  Countryes,  and  Admirall  of  New  England ; 
printed  at  London  in  1627.  The  work  is  adorned  with  curious 
maps  and  engravings  of  the  time  when  it  appeared ;  the  nar- 
rative extends  from  the  year  1584  to  1626.  Smith's  work  is 
highly  and  deservedly  esteemed.  The  author  was  one  of  the 
most  celebrated  adventurers  of  a  period  of  remarkable  adven- 
ture ;  his  book  breathes  that  ardour  for  discovery,  that  spirit 
of  enterprise,  which  characterized  the  men  of  his  time,  when 
the  manners  of  chivalry  were  united  to  zeal  for  commerce> 
and  made  subservient  to  the  acquisition  of  wealth. 

But  Captain  Smith  is  most  remarkable  for  uniting,  to  the 
virtues  which  characterized  his  cotemporaries,  several  qualities 
to  which  they  were  generally  strangers ;  his  style  is  simple 
and  concise,  his  narratives  bear  the  stamp  of  truth,  and  his 
descriptions  are  free  from  false  ornament. 

This  author  throws  most  valuable  light  upon  the  state  and 
condition  of  the  Indians  at  the  time  when  North  America  was 
first  discovered. 

The  second  historian  to  consult  is  Beverley,  who  com- 
mences his  narrative  with  the  year  1585,  and  ends  it  with 
1700.  The  first  part  of  his  book  contains  historical  docu- 
ments properly  so  called,  relative  to  the  infancy  of  the  colony. 
The  second  affords  a  most  curious  picture  of  the  state  of  the 
Indians  at  this  remote  period.  The  third  conveys  very  clear 
ideas  concerning  the  manners,  social  condition,  laws,  and  po- 
litical customs  of  the  Virginians  in  the  author's  lifetime. 

Beverley  was  a  native  of  Virginia,  which  occasions  him  to 
say  at  the  beginning  of  his  book  that  he  entreats  his  readers 
not  to  exercise  their  critical  severity  upon  it,  since,  having 
been  born  in  the  Indies,  he  does  not  aspire  to  purity  of  lan- 
guage. Notwithstanding  this  colonial  modesty,  the  author 
shows  throughout  his  book  the  impatience  with  which  he  en- 
dures the  supremacy  of  the  mother- country.  In  this  work  of 


251 

Beverley  are  also  found  numerous  traces  of  that  spirit  of  civil 
liberty  which  animated  the  English  colonies  of  America  at  the 
time  when  he  wrote.  He  also  shows  the  dissensions  which 
existed  among  them  and  retarded  their  independence.  Beverley 
detests  his  Catholic  neighbours  of  Maryland  even  more  than 
he  hates  the  English  Government :  his  style  is  simple,  his 
narrative  interesting  and  apparently  trustworthy. 

I  saw  in  America  another  work  which  ought  to  be  consult- 
ed, entitled  The  History  of  Virginia,  by  William  Stith.  This 
book  affords  some  curious  details,  but  I  thought  it  long  and 
diffuse. 

The  most  ancient  as  well  as  the  best  document  to  be  con- 
sulted on  the  history  of  Carolina  is  a  work  in  small  quarto, 
entitled  The  History  of  Carolina,  by  John  Lawson,  printed  at 
London  in  1718.  This  work  contains  in  the  first  part,  a  jour- 
ney of  discovery  in  the  west  of  Carolina,  the  account  of  which, 
given  in  the  form  of  a  journal,  is  in  general  confused  and 
superficial ;  but  it  contains  a  very  striking  description  of  the 
mortality  caused  among  the  savages  of  that  time  both  by  the 
small  pox  and  the  immoderate  use  of  brandy  ;  with  a  curious 
picture  of  the  corruption  of  manners  prevalent  amongst  them, 
which  was  increased  by  the  presence  of  Europeans.  The  se- 
cond part  of  Lawson's  book  is  taken  up  with  a  description  of 
the  physical  condition  of  Carolina,  and  its  productions.  In 
the  third  part  the  author  gives  an  interesting  account  of  the 
manners,  customs,  and  government  of  the  Indians  at  that 
period. '  There  is  a  good  deal  of  talent  and  originality  in  this 
part  of  the  work. 

Lawson  concludes  his  history  with  a  copy  of  the  Charter 
granted  to  the  Carolinas  in  the  reign  of  Charles  II.  The 
general  tone  of  this  work  is  light,  and  often  licentious,  forming 
a  perfect  contrast  to  the  solemn  style  of  the  works  published 
at  the  same  period  in  New  England.  Lawson's  History  is 
extremely  scarce  in  America,  and  cannot  be  procured  in  Eu- 
rope. There  is,  however,  a  copy  of  it  in  the  Royal  Library 
at  Paris. 

From  the  southern  extremity  of  the  United  States  I  pass 


252 

at  once  to  the  northern  limit ;  as  the  intermediate  space  was 
not  peopled  till  a  later  period. 

I  must  first  point  out  a  very  curious  compilation,  entitled 
Collection  of  the  Massachusetts  Historical  Society,  printed  for 
the  first  time  at  Boston  in  1792,  and  reprinted  in  1806.  The 
Collection  of  which  I  speak,  and  which  is  continued  to  the 
present  day,  contains  a  great  number  of  very  valuable  docu- 
ments relating  to  the  history  of  the  different  States  of  New 
England.  Among  them  are  letters  which  have  never  been 
published,  and  authentic  pieces  which  had  been  buried  in  pro- 
vincial archives.  The  whole  work  of  Gookin  concerning  the 
Indians  is  inserted  there. 

I  have  mentioned  several  times  in  the  chapter  to  which  this 
note  relates  the  work  of  Nathaniel  Norton,  entitled  New  Eng- 
land's Memorial ;  sufficiently  perhaps  to  prove  that  it  deserves 
the  attention  of  those  who  would  be  conversant  with  the  hi- 
story of  New  England.  This  book  is  in  Svo,  and  was  reprint- 
ed at  Boston  in  1826. 

The  most  valuable  and  important  authority  which  exists 
upon  the  history  of  New  England  is  the  work  of  the  Rev. 
Cotton  Mather,  entitled  Magnolia  Christi  Americana,  or  the 
Ecclesiastical  History  of  New  England,  1620-1698,  2  vols. 
Svo,  reprinted  at  Hartford,  United  States,  in  18201.  The 
author  divided  his  work  into  seven  books.  The  first  presents 
the  history  of  the  events  which  prepared  and  brought  about 
the  establishment  of  New  England.  The  second  contains  the 
lives  of  the  first  governors  and  chief  magistrates  who  presided 
over  the  country.  The  third  is  devoted  to  the  lives  and  la- 
bours of  the  evangelical  ministers  who  during  the  same  period 
had  the  care  of  souls.  In  the  fourth  the  author  relates  the 
institution  and  progress  of  the  University  of  Cambridge  (Mas- 
sachusetts). In  the  fifth  he  describes  the  principles  and  the 
discipline  of  the  Church  of  New  England.  The  sixth  is  taken 
up  in  retracing  certain  facts,  which,  in  the  opinion  of  Mather, 
prove  the  merciful  interposition  of  Providence  in  behalf  of  the 

1  A  folio  edition  of  this  work  was  published  in  London  in  1702. 


253 

inhabitants  of  New  England.  Lastly,  in  the  seventh,  the 
author  gives  an  account  of  the  heresies  and  the  troubles  to 
which  the  Church  of  New  England  was  exposed.  Cotton 
Mather  was  an  evangelical  minister  who  was  born  at  Boston, 
and  passed  his  life  there.  His  narratives  are  distinguished  by 
the  same  ardour  and  religious  zeal  which  led  to  the  foundation 
of  the  colonies  of  New  England.  Traces  of  bad  taste  some- 
times occur  in  his  manner  of  writing ;  but  he  interests,  be- 
cause he  is  full  of  enthusiasm.  He  is  often  intolerant,  still 
oftener  credulous,  but  he  never  betrays  an  intention  to  deceive. 
Sometimes  his  book  contains  fine  passages,  and  true  and  pro- 
found reflections,  such  as  the  following  : — 

"  Before  the  arrival  of  the  Puritans,"  says  he,  (vol.  i.  chap, 
iv.)  "  there  were  more  than  a  few  attempts  of  the  English  to 
people  and  improve  the  parts  of  New  England  which  were  to 
the  northward  of  New  Plymouth ;  but  the  designs  of  those 
attempts  being  aimed  no  higher  than  the  advancement  of  some 
worldly  interests,  a  constant  series  of  disasters  has  confounded 
them,  until  there  was  a  plantation  erected  upon  the  nobler 
designs  of  Christianity  :  and  that  plantation,  though  it  has 
had  more  adversaries  than  perhaps  any  one  upon  earth,  yet, 
having  obtained  help  from  God,  it  continues  to  this  day." 

Mather  occasionally  relieves  the  austerity  of  his  descriptions 
with  images  full  of  tender  feeling  :  after  having  spoken  of  an 
English  lady  whose  religious  ardour  had  brought  her  to  Ame- 
rica with  her  husband,  and  who  soon  after  sank  under  the  fa- 
tigues and  privations  of  exile,  he  adds,  "  As  for  her  virtuous 
husband,  Isaac  Johnson, 

He  tryed 

To  live  without  her,  liked  it  not,  and  dyed." — (Vol.  i.) 

Mather's  work  gives  an  admirable  picture  of  the  time  and 
country  which  he  describes.  In  his  account  of  the  motives 
which  led  the  Puritans  to  seek  an  asylum  beyond  seas,  he  says  : 

"  The  God  of  Heaven  served,  as  it  were,  a  summons  upon 
the  spirits  of  his  people  in  the  English  nation,  stirring  up  the 
spirits  of  thousands  which  never  saw  the  faces  of  each  other, 


254 

with  a  most  unanimous  inclination  to  leave  all  the  pleasant 
accommodations  of  their  native  country,  and  go  over  a  terrible 
ocean,  into  a  more  terrible  desert,  for  the  pure  enjoyment  of 
all  his  ordinances.  It  is  now  reasonable  that,  before  we  pass 
any  further,  the  reasons  of  this  undertaking  should  be  more 
exactly  made  known  unto  posterity,  especially  unto  the  pos- 
terity of  those  that  were  the  undertakers,  lest  they  come  at 
length  to  forget  and  neglect  the  true  interest  of  New  Eng- 
land. Wherefore  I  shall  now  transcribe  some  of  them  from 
a  manuscript  wherein  they  were  then  tendered  unto  con- 
sideration. 

"  General  Considerations  for  the  Plantation  of  New 
England. 

"  First,  It  will  be  a  service  unto  the  Church  of  great  con- 
sequence, to  carry  the  Gospel  unto  those  parts  of  the  world, 
and  raise  a  bulwark  against  the  kingdom  of  Antichrist,  which 
the  Jesuits  labour  to  rear  up  in  all  parts  of  the  world. 

"  Secondly,  All  other  Churches  of  Europe  have  been  brought 
under  desolations  ;  and  it  may  be  feared  that  the  like  judge- 
ments are  coming  upon  us ;  and  who  knows  but  God  hath 
provided  this  place  to  be  a  refuge  for  many  whom  he  means 
to  save  out  of  the  general  destruction  ? 

"  Thirdly,  The  land  grows  weary  of  her  inhabitants,  inso- 
much that  man,  which  is  the  most  precious  of  all  creatures, 
is  here  more  vile  and  base  than  the  earth  he  treads  upon ; 
children,  neighbours,  and  friends,  especially  the  poor,  are 
counted  the  greatest  burdens,  which,  if  things  were  right, 
would  be  the  chiefest  of  earthly  blessings. 

"  Fourthly,  We  are  grown  to  that  intemperance  in  all  ex- 
cess of  riot,  as  no  mean  estate  almost  will  suffice  a  man  to 
keep  sail  with  his  equals,  and  he  that  fails  in  it  must  live  in 
scorn  and  contempt ;  hence  it  comes  to  pass,  that  all  arts  and 
trades  are  carried  in  that  deceitful  manner  and  unrighteous 
course,  as  it  is  almost  impossible  for  a  good  upright  man  to 
maintain  his  constant  charge  and  live  comfortably  in  them. 

"Fifthly,  The  schools  of  learning  and  religion  are  so  cor- 


255 

rupted,  as  (beside  the  unsupportable  charge  of  education) 
most  children,  even  the  best,  wittiest,  and  of  the  fairest 
hopes,  are  perverted,  corrupted,  and  utterly  overthrown  by 
the  multitude  of  evil  examples  and  licentious  behaviours  in 
these  seminaries. 

"  Sixthly,  The  whole  earth  is  the  Lord's  garden,  and  he 
hath  given  it  to  the  sons  of  Adam,  to  be  tilled  and  improved 
by  them :  why  then  should  we  stand  starving  here  for  places 
of  habitation,  and  in  the  mean  time  suffer  whole  countries, 
as  profitable  for  the  use  of  man,  to  lie  waste  without  any  im- 
provement ? 

"  Seventhly,  What  can  be  a  better  or  nobler  work,  and  more 
worthy  of  a  Christian,  than  to  erect  and  support  a  reformed 
particular  Church  in  its  infancy,  and  unite  our  forces  with 
such  a  company  of  faithful  people,  as  by  timely  assistance 
may  grow  stronger  and  prosper  ;  but  for  want  of  it,  may  be 
put  to  great  hazards,  if  not  be  wholly  ruined  ? 

"  Eighthly,  If  any  such  as  are  known  to  be  godly,  and  live 
in  wealth  and  prosperity  here,  shall  forsake  all  this  to  join 
with  this  reformed  Church,  and  with  it  run  the  hazard  of  an 
hard  and  mean  condition,  it  will  be  an  example  of  great  use, 
both  for  the  removing  of  scandal,  and  to  give  more  life  unto 
the  faith  of  God's  people  in  their  prayers  for  the  plantation, 
and  also  to  encourage  others  to  join  the  more  willingly  in  it." 

Further  on,  when  he  declares  the  principles  of  the  Church 
of  New  England  with  respect  to  morals,  Mather  inveighs  with 
violence  against  the  custom  of  drinking  healths  at  table,  which 
he  denounces  as  a  pagan  and  abominable  practice.  He  pro- 
scribes with  the  same  rigour  all  ornaments  for  the  hair  used 
by  the  female  sex,  as  well  as  their  custom  of  having  the  arms 
and  neck  uncovered. 

In  another  part  of  his  work  he  relates  several  instances  of 
witchcraft  which  had  alarmed  New  England.  It  is  plain  that 
the  visible  action  of  the  devil  in  the  affairs  of  this  world  ap- 
peared to  him  an  incontestable  and  evident  fact. 

This  work  of  Cotton  Mather  displays,  in  many  places,  the 


256 

spirit  of  civil  liberty  andpolitical  independence  which  character- 
ized the  times  in  which  he  lived.  Their  principles  respecting 
government  are  discoverable  at  every  page.  Thus,  for  instance, 
the  inhabitants  of  Massachusetts,  in  the  year  1630,  ten  years 
after  the  foundation  of  Plymouth,  are  found  to  have  devoted 
400^.  sterling  to  the  establishment  of  the  University  of  Cam- 
bridge. In  passing  from  the  general  documents  relative  to 
the  history  of  New  England,  to  those  which  describe  the 
several  States  comprised  within  its  limits,  I  ought  first  to  no- 
tice The  History  of  the  Colony  of  Massachusetts,  by  Hutchinson, 
Lieutenant-Governor  of  the  Massachusetts  Province,  2  vols.  8vo. 
The  History  of  Hutchinson,  which  I  have  several  times 
quoted  in  the  chapter  to  which  this  note  relates,  commences 
in  the  year  1628  and  ends  in  1750.  Throughout  the  work 
there  is  a  striking  air  of  truth  and  the  greatest  simplicity  of 
style  :  it  is  full  of  minute  details. 

The  best  History  to  consult  concerning  Connecticut  is  that 
of  Benjamin  Trumbull,  entitled,  A  Complete  History  of  Con- 
necticut, Civil  and  Ecclesiastical,  1630 — 1764;  2  vols.  8vo, 
printed  in  1818,  at  New-Haven.  This  history  contains  a  clear 
and  calm  account  of  all  the  events  which  happened  in  Con- 
necticut during  the  period  given  in  the  title.  The  author 
drew  from  the  best  sources  ;  and  his  narrative  bears  the  stamp 
of  truth.  All  that  he  says  of  the  early  days  of  Connecticut 
is  extremely  curious.  See  especially  the  Constitution  of 
1639,  vol.  i.  ch.  vi.  p.  100;  and  also  the  Penal  Laws  of  Con- 
necticut, vol.  i.  ch.  vii.  p.  123. 

The  History  of  New  Hampshire,  by  Jeremy  Belknap,  is  a 
work  held  in  merited  estimation.  It  was  printed  at  Boston 
in  1792,  in  2  vols.  8vo.  The  third  chapter  of  the  first  volume 
is  particularly  worthy  of  attention  for  the  valuable  details  it 
affords  on  the  political  and  religious  principles  of  the  Puritans, 
on  the  causes  of  their  emigration,  and  on  their  laws.  The 
following  curious  quotation  is  given  from  a  sermon  delivered 
in  1663  : — "  It  concerneth  New  England  always  to  remember 
that  they  are  a  plantation  religious,  not  a  plantation  of  trade. 
The  profession  of  the  purity  of  doctrine,  worship,  and  disci- 


257 

pline  is  written  upon  her  forehead.  Let  merchants,  and  such 
as  are  encreasing  cent,  per  cent,  remember  this,  that  world- 
ly gain  was  not  the  end  and  design  of  the  people  of  New 
England,  but  religion ;  and  if  any  man  among  us  make  re- 
ligion as  twelve,  and  the  world  as  thirteen,  such  an  one  hath 
not  the  spirit  of  a  true  New  Englishman."  The  reader  of 
Belknap  will  find  in  his  work  more  general  ideas,  and  more 
strength  of  thought,  than  are  to  be  met  with  in  the  American 
historians  even  to  the  present  day. 

Among  the  Central  States  which  deserve  our  attention  for 
their  remote  origin,  New  York  and  Pennsylvania  are  the  fore- 
most. The  best  history  we  have  of  the  former  is  entitled  A 
History  of  New  York,  by  William  Smith,  printed  at  London  in 
1757.  Smith  gives  us  important  details  of  the  wars  between 
the  French  and  English  in  America.  His  is  the  best  account 
of  the  famous  confederation  of  the  Iroquois. 

With  respect  to  Pennsylvania,  I  cannot  do  better  than 
point  out  the  work  of  Proud,  entitled  the  History  of  Pennsyl- 
vania, from  the  original  Institution  and  Settlement  of  that 
Province,  under  the  first  Proprietor  and  Governor  William 
Penn,  in  1681,  till  after  the  year  1742;  by  Robert  Proud,  2 
vols.  8vo.  printed  at  Philadelphia  in  1797.  This  work  is  de- 
serving of  the  especial  attention  of  the  reader  ;  it  contains  a 
mass  of  curious  documents  concerning  Penn,  the  doctrine  of 
the  Quakers,  and  the  character,  manners,  and  customs  of  the 
first  inhabitants  of  Pennsylvania, 

I  need  not  add  that  among  the  most  important  documents 
relating  to  this  state  are  the  Works  of  Penn  himself  and  those 
of  Franklin. 


APPENDIX  G.— Page  44. 

We  read  in  Jefferson's  Memoirs  as  follows  : 

"At  the  time  of  the  first  settlement  of  the  English  in  Vir- 
ginia, when  land  was  to  be  had  for  little  or  nothing,  some 
provident  persons  having  obtained  large  grants  of  it,  and 


258 

being  desirous  of  maintaining  the  splendour  of  their  families, 
entailed  their  property  upon  their  descendants.  The  transmis- 
sion of  these  estates  from  generation  to  generation,  to  men  who 
bore  the  same  name,  had  the  effect  of  raising  up  a  distinct  class 
of  families,  who,  possessing  by  law  the  privilege  of  perpetuating 
their  wealth,  formed  by  these  means  a  sort  of  patrician  order, 
distinguished  by  the  grandeur  and  luxury  of  their  establish- 
ments. From  this  order  it  was  that  the  King  usually  chose 
his  councillors  of  state*." 

In  the  United  States,  the  principal  clauses  of  the  English 
law  respecting  descent  have  been  universally  rejected.  The 
first  rule  that  we  follow,  says  Mr.  Kent,  touching  inheritance 
is  the  following  :  If  a  man  dies  intestate,  his  property  goes  to 
his  heirs  in  a  direct  line.  If  he  has  but  one  heir  or  heiress,  he 
or  she  succeeds  to  the  whole.  If  there  are  several  heirs  of 
the  same  degree,  they  divide  the  inheritance  equally  amongst 
them,  without  distinction  of  sex. 

This  rule  was  prescribed  for  the  first  time  in  the  State  of 
New  York  by  a  statute  of  the  23rd  of  February,  1786.  (See 
Revised  Statutes,  vol.  iii.,  Appendix,  p.  48.)  It  has  since 
then  been  adopted  in  the  revised  statutes  of  the  same  State. 
At  the  present  day  this  law  holds  good  throughout  the  whole 
of  the  United  States,  with  the  exception  of  the  State  of  Ver- 
mont, where  the  male  heir  inherits  a  double  portion.  Kent's 
Commentaries,  vol.  iv.  p.  370.  Mr.  Kent,  in  the  same  work, 
vol.  iv.  p.  1 — 22,  gives  an  historical  account  of  American 
legislation  on  the  subject  of  entail :  by  this  we  learn,  that 
previous  to  the  revolution,  the  colonies  followed  the  English 
law  of  entail.  Estates  tail  were  abolished  in  Virginia  in  1776, 
on  a  motion  of  Mr.  Jefferson.  They  were  suppressed  in  Ne,w 
York  in  1786  ;  and  have  since  been  abolished  in  North 
Carolina,  Kentucky,  Tennessee,  Georgia,  and  Missouri.  In 
Vermont,  Indiana,  Illinois,  South  Carolina,  and  Louisiana, 
entail  was  never  introduced.  Those  States  which  thought 

*  This  passage  is  extracted  and  translated  from  M.  Conseil's  work  upon 
the  Life  of  Jefferson,  entitled  '  Melanges  Politiques  et  Philosophiques  de 
Jefferson,' 


259 

proper  to  preserve  the  English  law  of  entail,  modified  it  in 
such  a  way  as  to  deprive  it  of  its  most  aristocratic  tendencies. 
"  Our  general  principles  on  the  subject  of  government,"  says 
Mr.  Kent,  "  tend  to  favour  the  free  circulation  of  property." 

It  cannot  fail  to  strike  the  French  reader  who  studies  the 
law  of  inheritance,  that  on  these  questions  the  French  legis- 
lation is  infinitely  more  democratic  even  than  the  American. 

The  American  law  makes  an  equal  division  of  the  father's 
property,  hut  only  in  the  case  of  his  will  not  being  known  ; 
"  for  every  man,"  says  the  law,  "  in  the  State  of  New  York, 
(Revised  Statutes,  vol.  iii.,  Appendix,  p.  51,)  has  entire  liberty, 
power,  and  authority,  to  dispose  of  his  property  by  will,  to 
leave  it  entire,  or  divided  in  favour  of  any  persons  he  chooses 
as  his  heirs,  provided  he  -do  not  leave  it  to  a  political  body  or 
any  corporation."  The  French  law  obliges  the  testator  to 
divide  his  property  equally,  or  nearly  so,  among  his  heirs. 

Most  of  the  American  republics  still  admit  of  entails,  under 
certain  restrictions ;  but  the  French  law  prohibits  entail  in 
all  cases. 

If  the  social  condition  of  the  Americans  is  more  democratic 
than  that  of  the  French,  the  laws  of  the  latter  are  the  most 
democratic  of  the  two.  This  may  be  explained  more  easily 
than  at  first  appears  to  be  the  case.  In  France,  democracy  is 
still  occupied  in  the  work  of  destruction  ;  in  America  it  reigns 
quietly  over  the  ruins  it  has  made. 


APPENDIX  H.— Page  53. 

SUMMARY  OF  THE  QUALIFICATIONS  OF    VOTERS   IN    THE    UNITED 

STATES. 

All  the  States  agree  in  granting  the  right  of  voting  at  the 
age  of  twenty-one.  In  all  of  them  it  is  necessary  to  have  re- 
sided for  a  certain  time  in  the  district  where  the  vote  is  given. 
This  period  varies  from  three  months  to  two  years. 


260 

As  to  the  qualification  ;  in  the  State  of  Massachusetts,  it  is 
necessary  to  have  an  income  of  three  pounds  sterling,  or  a 
capital  of  sixty  pounds. 

In  Rhode  Island,  a  man  must  possess  landed  property  to 
the  amount  of  133  dollars. 

In  Connecticut,  he  must  have  a  property  which  gives  an 
income  of  seventeen  dollars.  A  year  of  service  in  the  militia 
also  gives  the  elective  privilege. 

In  New  Jersey,  an  elector  must  have  a  property  of  fifty 
pounds  a  year. 

In  South  Carolina  and  Maryland,  the  elector  must  possess 
£fty  acres  of  land. 

In  Tennessee,  he  must  possess  some  property. 
In  the  States  of  Mississippi,  Ohio,  Georgia,  Virginia,  Penn- 
sylvania, Delaware,  New  York,  the  only  necessary  qualifica- 
tion for  voting  is  that  of  paying  the  taxes ;  and  in  most  of 
the  States,  to  serve  in  the  militia  is  equivalent  to  the  payment 
of  taxes. 

In  Maine  and  New  Hampshire,  any  man  can  vote  who  is 
not  on  the  pauper  list. 

Lastly,  in  the  States  of  Missouri,  Alabama,  Illinois,  Lou- 
isiana, Indiana,  Kentucky  and  Vermont,  the  conditions  of 
voting  have  no  reference  to  the  property  of  the  elector. 

I  believe  there  is  no  other  State  beside  that  of  North  Caro- 
lina in  which  different  conditions  are  applied  to  the  voting  for 
the  Senate  and  the  electing  the  House  of  Representatives. 
The  electors  of  the  former,  in  this  case,  should  possess  in 
property  fifty  acres  of  land ;  to  vote  for  the  latter,  nothing 
more  is  required  than  to  pay  taxes. 


APPENDIX  L— Page  102. 

The  small  number  of  Custom-house  officers  employed  in 
the  United  States  compared  with  the  extent  of  the  coast  ren- 
ders smuggling  very  easy ;  notwithstanding  which  it  is  less 


261 

practised  than  elsewhere,  because  every  body  endeavours  to 
press  it.  In  America  there  is  no  police  for  the  prevention 
of  fires,  and  such  accidents  are  more  frequent  than  in 
Europe  ;  but  in  general  they  are  more  speedily  extinguished, 
because  the  surrounding  population  is  prompt  in  lending  as- 
sistance. 


APPENDIX  K.— Page  104. 

It  is  incorrect  to  assert  that  centralization  was  produced  by 
the  French  revolution  :  the  revolution  brought  it  to  perfection, 
but  did  not  create  it.  The  mania  for  centralization  and  go- 
vernment regulations  dates  from  the  time  when  jurists  began 
to  take  a  share  in  the  government,  in  the  time  of  Phillippe- 
le-Bel;  ever  since  which  period  they  have  been  on  the  in- 
crease. In  the  year  1775,  M.  de  Malesherbes,  speaking  in 
the  name  of  the  Cour  des  Aides,  said  to  Louis  XIV*. 

" Every  corporation  and  every  community  of  citizens 

retained  the  right  of  administering  its  own  affairs ;  a  right, 
which  not  only  forms  part  of  the  primitive  constitution  of  the 
kingdom,  but  has  a  still  higher  origin ;  for  it  is  the  right  of 
nature  and  of  reason.  Nevertheless  your  subjects,  Sire,  have 
been  deprived  of  it ;  and  we  cannot  refrain  from  saying  that 
in  this  respect  your  government  has  fallen  into  puerile  ex- 
tremes. From  the  time  when  powerful  ministers  made  it  a 
political  principle  to  prevent  the  convocation  of  a  national 
assembly,  one  consequence  has  succeeded  another,  until  the 
deliberations  of  the  inhabitants  of  a  village  are  declared  null 
•vrhen  they  have  not  been  authorized  by  the  Intendant.  Of 
course,  if  the  community  has  an  expensive  undertaking  to  carry 
through,  it  must  remain  under  the  control  of  the  sub-delegate 
of  the  Intendant,  and  consequently  follow  the  plan  he  proposes, 
employ  his  favourite  workmen,  pay  them  according  to  his  plea- 
sure ;  and  if  an  action  at  law  is  deemed  necessary,  the  Intend- 
ant's  permission  must  be  obtained.  The  cause  must  be  pleaded 

*  See  '  Memoires  pour  servir  a  1'Histoire  du  Droit  Public  de  la  France 
en  matiere  d'Impots,'  p.  654,  printed  at  Brussels  in  1779. 


262 

before  this  first  tribunal,  previous  to  its  being  carried  into  a 
public  court ;  and  if  the  opinion  of  the  Intendant  is  opposed 
to  that  pi  the  inhabitants,  or  if  their  adversary  enjoys  his 
favour,  the  community  is  deprived  of  the  power  of  defending 
its  rights.  Such  are  the  means,  Sire,  which  have  been  ex- 
erted to  extinguish  the  municipal  spirit  in  France ;  and  to 
stifle,  if  possible,  the  opinions  of  the  citizens.  The  nation 
may  be  said  to  lie  under  an  interdict,  and  to  be  in  wardship 
under  guardians." 

What  could  be  said  more  to  the  purpose  at  the  present  day, 
when  the  revolution  has  achieved  what  are  called  its  victories 
in  centralization  ? 

In  1789,  Jefferson  wrote  from  Paris  to  one  of  his  friends  : 
"There  is  no  country  where  the  mania  for  over-governing 
has  taken  deeper  root  than  in  France,  or  been  the  source  of 
greater  mischief."  Letter  to  Madison,  28th  August,  1789. 

The  fact  is,  that  for  several  centuries  past  the  central  power 
of  France  has  done  everything  it  could  to  extend  central 
administration ;  it  has  acknowledged  no  other  limits  than  its 
own  strength.  The  central  power  to  which  the  revolution 
gave  birth  made  more  rapid  advances  than  any  of  its  prede- 
cessors, because  it  was  stronger  and  wiser  than  they  had  been ; 
Louis  XIV.  committed  the  welfare  of  such  communities  to  the 
caprice  of  an  Intendant ;  Napoleon  left  them  to  that  of  the 
Minister.  The  same  principle  governed  both,  though  its 
consequences  were  more  or  less  remote.  ' 


APPENDIX  L.— Page  109. 

This  immutability  of  the  Constitution  of  France  is  a  neces- 
sary consequence  of  the  laws  of  that  country.  . 

To  begin  with  the  most  important  of  all  the  laws,  that  which 
decides  the  order  of  succession  to  the  Throne ;  what  can  be 
more  immutable  in  its  principle  than  a  political  order  founded 
upon  the  natural  succession  of  father  to  son?  In  1814 
Louis  XVIII.  had  established  the  perpetual  law  of  hereditary 


263 

succession  in  favour  of  his  own  family.  The  individuals  who 
regulated  the  consequences  of  the  revolution  of  1830  followed 
his  example ;  they  merely  established  the  perpetuity  of  the 
law  in  favour  of  another  family.  In  this  respect  they  imitated 
the  Chancellor  Meaupou,  who,  when  he  erected  the  new  par- 
liament upon  the  ruins  of  the  old,  took  care  to  declare  in  the 
same  ordinance  that  the  rights  of  the  new  magistrates  should 
be  as  inalienable  as  those  of  their  predecessors  had  been. 

The  laws  of  1830,  like  those  of  1814,  point  out  no  way  of 
changing  the  Constitution  ;  and  it  is  evident  that  the  ordinary 
means  of  legislation  are  insufficient  for  this  purpose.  As  the 
King,  the  Peers,  and  the  Deputies  all  derive  their  authority 
from  the  Constitution,  these  three  powers  united  cannot  alter 
a  law  by  virtue  of  which  alone  they  govern.  Out  of  the  pale 
of  the  Constitution,  they  are  nothing:  where,  then,  could  they 
take  their  stand  to  effect  a  change  in  its  provisions  ?  The 
alternative  is  clear :  either  their  efforts  are  powerless  against 
the  Charter,  which  continues  to  exist  in  spite  of  them,  in  which 
case  they  only  reign  in  the  name  of  the  Charter ;  or  they 
succeed  in  changing  the  Charter,  and  then  the  law  by  which 
they  existed  being  annulled,  they  themselves  cease  to  exist. 
By  destroying  the  Charter  they  destroy  themselves. 

This  is  much  more  evident  in  the  laws  of  1 830  than  in  those 
of  1814.  In  1814,  the  royal  prerogative  took  its  stand  above 
and  beyond  the  Constitution ;  but  in  1 830,  it  was  avowedly 
created  by,  and  dependent  on,  the  Constitution. 

A  part  therefore  of  the  French  Constitution  is  immutable, 
because  it  is  united  to  the  destiny  of  a  family ;  and  the  body 
of  the  Constitution  is  equally  immutable,  because  there  appear 
to  be  no  legal  means  of  changing  it. 

These  remarks  are  not  applicable  to  England.  That  coun- 
try having  no  written  Constitution,  who  can  assert  when  its 
Constitution  is  changed  ? 


264 


APPENDIX  M.— Page  109. 

The  most  esteemed  authors  who  have  written  upon  the 
English  Constitution  agree  with  each  other  in  establishing  the 
omnipotence  of  the  Parliament. 

Delolme  says,  "It  is  a  fundamental  principle  with  the 
English  lawyers,  that  Parliament  can  do  everything  except 
making  a  woman  a  man,  or  a  man  a  woman." 

Blackstone  expresses  himself  more  in  detail,  if  not  more 
energetically,  than  Delolme,  in  the  following  terms  : — 

"  The  power  and  jurisdiction  of  Parliament,  says  Sir  Edward 
Coke  (4  Inst.  36.),  is  so  transcendent  and  absolute,  that  it 
cannot  be  confined,  either  for  causes  or  persons,  within  any 
bounds.  And  of  this  high  Court,  he  adds,  may  be  truly  said, 
'  Si  antiquitatem  species,  est  vetustissima ;  si  dignitatem,  est 
honoratissima ;  si  jurisdictionem,  est  capacissima.'  It  hath 
sovereign  and  uncontrollable  authority  in  the  making,  confirm- 
ing, enlarging,  restraining,  abrogating,  repealing,  reviving  and 
expounding  of  laws,  concerning  matters  of  all  possible  denomi- 
nations ;  ecclesiastical  or  temporal ;  civil,  military,  maritime, 
or  criminal ;  this  being  the  place  where  that  absolute  despotic 
power  which  must,  in  all  Governments,  reside  somewhere,  is 
entrusted  by  the  Constitution  of  these  kingdoms.  All  mis- 
chiefs and  grievances,  operations  and  remedies,  that  transcend 
the  ordinary  course  of  the  laws,  are  within  the  reach  of  this 
extraordinary  tribunal.  It  can  regulate  or  new-model  the 
succession  to  the  Crown  ;  as  was  done  in  the  reign  of  Henry 
VIII.  and  William  III.  It  can  alter  the  established  religion 
of  the  land ;  as  was  done  in  a  variety  of  instances  in  the  reigns 
of  King  Henry  VIII.  and  his  three  children.  It  can  change 
and  create  afresh  even  the  Constitution  of  the  kingdom,  and  of 
parliaments  themselves  ;  as  was  done  by  the  Act  of  Union 
and  the  several  statutes  for  triennial  and  septennial  elections. 
It  can,  in  short,  do  everything  that  is  not  naturally  impossible 
to  be  done ;  and,  therefore,  some  have  not  scrupled  to  call  its 
power  by  a  figure  rather  too  bold,  the  omnipotence  of  Par- 
liament." 


265 


APPENDIX  N.— Page  122. 

There  is  no  question  upon  which  the  American  Constitu- 
tions agree  more  fully  than  upon  that  of  political  jurisdiction. 
All  the  Constitutions  which  take  cognizance  of  this  matter, 
give  to  the  House  of  Delegates  the  exclusive  right  of  impeach- 
ment; excepting  only  the  Constitution  of  North  Carolina, 
which  grants  the  same  privilege  to  grand  juries.  (Article  23.) 

Almost  all  the  Constitutions  give  the  exclusive  right  of 
pronouncing  sentence  to  the  Senate,  or  to  the  Assembly  which 
occupies  its  place. 

The  only  punishments  which  the  political  tribunals  can 
inflict  are  removal,  or  the  interdiction  of  public  functions  for 
the  future.  There  is  no  other  Constitution  but  that  of  Vir- 
ginia (p.  152,)  which  enables  them  to  inflict  every  kind  of 
punishment. 

The  crimes  which  are  subject  to  political  jurisdiction  are,  in 
the  Federal  Constitution,  (Section  4.  Art.  1.) ;  in  that  of  In- 
diana, (Art. 3.  paragraphs  23  and  24.) ;  of  New  York,  (Art.  5.) ; 
of  Delaware,  (Art.  5.);  high  treason,  bribery,  and  other  high 
crimes  or  offences. 

In  the  Constitution  of  Massachusetts,  (Chap.  I.  Section  2.) ; 
that  of  North  Carolina,  (Art.  23.);  of  Virginia,  (p.  252,) 
misconduct  and  maladministration. 

In  the  Constitution  of  New  Hampshire,  (p.  105.)  corrup- 
tion, intrigue,  and  maladministration. 

In  Vermont,  (Chap.  II.,  Art.  24.)  maladministration. 

In  South  Carolina,  (Art.  5.);  Kentucky,  (Art.  5.);  Ten- 
nessee, (Art.  4.);  Ohio,  (Art.  1.  §  23,  24.);  Louisiana, 
(Art.  5.);  Mississippi,  (Art.  5.);  Alabama,  (Art.  6.);  Penn- 
sylvania, (Art.  4.) ;  crimes  committed  in  the  nonperformance 
of  official  duties. 

In  the  States  of  Illinois,  Georgia,  Maine,  and  Connecticut, 
no  particular  offences  are  specified. 

VOL.  I.  N 


266 


APPENDIX  O. 

It  is  true  that  the  powers  of  Europe  may  carry  on  maritime 
wars  with  the  Union ;  but  there  is  always  greater  facility  and 
less  danger  in  supporting  a  maritime  than  a  continental  war. 
Maritime  warfare  only  requires  one  species  of  effort.  A 
commercial  people  which  consents  to  furnish  its  Government 
\vith  the  necessary  funds,  is  sure  to  possess  a  fleet.  And  it 
is  far  easier  to  induce  a  nation  to  part  with  its  money,  almost 
unconsciously,  than  to  reconcile  it  to  sacrifices  of  men  and 
personal  efforts.  Moreover  defeat  by  sea  rarely  compromises 
the  existence  or  independence  of  the  people  which  endures  it. 

As  for  continental  wars,  it  is  evident  that  the  nations  of 
Europe  cannot  be  formidable  in  this  way  to  the  American 
Union.  It  would  be  very  difficult  to  transport  and  maintain 
in  America  more  than  25,000  soldiers ;  an  army  which  may 
be  considered  to  represent  a  nation  of  about  2,000,000  of  men. 
The  most  populous  nation  of  Europe  contending  in  this  way 
against  the  Union,  is  in  the  position  of  a  nation  of  2,000,000 
of  inhabitants  at  war  with  one  of  12,000,000.  Add  to  this, 
that  America  has  all  its  resources  within  reach,  whilst  the 
European  is  at  4000  miles,  distance  from  his ;  and  that  the 
immensity  of  the  American  continent  would  of  itself  present 
an  insurmountable  obstacle  to  its  conquest. 


APPENDIX  P. 

Constitution  of  the  United  States. 

We,  the  people  of  the  United  States,  in  order  to  form  a 
more  perfect  union,  establish  justice,  ensure  domestic  tran- 
quillity, provide  for  the  common  defence,  promote  the  general 
welfare,  and  secure  the  blessings  of  liberty  to  ourselves  and 
our  posterity,  do  ordain  and  establish  this  Constitution  for  the 
United  States  of  America. 


267 


ARTICLE   I. SECTION   I. 

1.  All  legislative  powers  herein  granted  shall  be  vested  in 
a  Congress  of  the  United  States,  which  shall  consist  of  a  Se- 
nate and  a  House  of  Representatives. 

SECTION  2. 

1.  The   House  of   Representatives  shall   be   composed   of 
members  chosen  every  second  year  by  the  people  of  the  several 
States ;  and  the  electors  in  each  State  shall  have  the  quali- 
fications requisite  for  electors  of  the  most  numerous  branch  of 
the  State  legislature. 

2.  No  person  shall  be  a  Representative  who  shall  not  have 
attained  to  the  age  of  twenty- five  years,  and  been  seven  years 
a  citizen  of  the  United  States,  and  who  shall  not,  when  elected, 
be  an  inhabitant  of  that  State  in  which  he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  within  this 
Union,  according  to  their  respective  numbers,  which  shall  be 
determined  by  adding  to  the  whole  number  of  free  persons, 
including  those  bound  to  service  for  a  term  of  years,  and  ex- 
cluding Indians  not  taxed,  three  fifths  of  all  other  persons. 
The  actual  enumeration  shall  be  made  within  three  years  after 
the  first  meeting  of  the  Congress  of  the  United  States,  and 
within  every  subsequent  term  of  ten  years,  in  such  manner  as 
they  shall  by  law  direct.  The  number  of  representatives  shall 
not  exceed  one  for  every  thirty  thousand,  but  each  State  shall 
have  at  least  one  representative ;  and  until  such  enumeration 
shall  be  made,  the  State  of  New  Hampshire  shall  be  entitled 
to  choose  three  ;  Massachusetts  eight ;  Rhode  Island  and  Pro- 
vidence Plantations  one  ;  Connecticut  five ;  New  York  six  ;  New 
Jersey  four ;  Pennsylvania  eight ;  Delaware  one  ;  Mary  land  six; 

Virginia  ten  ;  North  Carolina  five  ;  South  Carolina  five ;   and 

Georgia  three. 

4.  When  vacancies  happen  in  the  representation  from  any 
State,  the  executive  authority  thereof  shall  issue  writs  of  elec- 
tion to  fill  up  such  vacancies. 

N  2 


268 

5.  The  House  of  Representatives  shall  choose  their  speaker 
and  other  officers,  and  shall  have  the  sole  power  of  impeach- 
ment. 

SECTION  3. 

1.  The  Senate  of  the  United  States  shall  be  composed  of 
two  senators  from  each  State,  chosen  by  the  legislature  thereof, 
for  six  years  ;  and  each  senator  shall  have  one  vote. 

2.  Immediately  after  they  shall  be  assembled  in  consequence 
of  the  first  election,  they  shall  be  divided,  as  equally  as  may 
be,  into  three  classes.     The  seats  of  the  senators  of  the  first 
class  shall  be  vacated  at  the  expiration  of  the  second  year ;  of 
the  second  class  at  the  expiration  of  the  fourth  year ;  and  of 
the  third  class  at  the  expiration  of  the  sixth  year ;  so  that  one 
third  may  be  chosen  every  second  year ;  and  if  vacancies 
happen,  by  resignation  or  otherwise,  during  the  recess  of  the 
legislature  of  any   State,  the  executive   thereof  may   make 
temporary  appointment  until  the  next  meeting  of  the  legisla- 
ture, which  shall  then  fill  such  vacancies. 

3.  No  person  shall  be  a  senator  who  shall  not  have  attained 
to  the  age  of  thirty  years,  and  been  nine  years  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inha- 
bitant of  that  State  for  which  he  shall  be  chosen. 

4.  The  Vice-President  of  the  United  States  shall  be  Presi- 
dent of  the  Senate,  but  shall  have  no  vote,  unless  they  be 
equally  divided. 

5.  The  Senate  shall  choose  their  other  officers,  and  also  a 
president  pro  tempore,  in  the  absence  of  the  vice-president, 
or  when  he  shall  exercise  the  office  of  President  of  the  United 
States. 

6.  The  Senate  shall  have  the  sole  power  to  try  all  impeach- 
ments.    When  sitting  for  that  purpose,  they  shall  be  on  oath 
or  affirmation.     When  the  President  of  the  United  States  is 
tried,  the  chief  justice  shall  preside ;  and  no  person  shall  be 
convicted  without  the  concurrence  of  two  thirds  of  the  mem- 
bers present. 

7.  Judgement,  in  case  of  impeachment,  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to  hold 


269 

and  enjoy  any  office  of  honour,  trust,  or  profit,  under  the 
United  States  ;  but  the  party  convicted  shall  nevertheless  be 
liable  and  subject  to  indictment,  trial,  judgement,  and  punish- 
ment according  to  law. 

SECTION  4. 

1 .  The  times,  places,  and  manner  of  holding  elections  for 
senators  and  representatives,  shall  be  prescribed  in  each  State 
by  the  legislature  thereof;  but  the  Congress  may,  at  any 
time,  by  law,  make  or  alter  such  regulations,  except  as  to  the 
places  of  choosing  senators. 

2.  The  Congress  shall  assemble  at  least  once  in  every  year, 
and  such  meeting  shall  be  on  the  first  Monday  in  December, 
unless  they  shall  by  law  appoint  a  different  day. 

SECTION  5. 

1.  Each  House  shall  be  the  judge  of  the  elections,  returns, 
and  qualifications  of  its  own  members  :  and  a  majority  of  each 
shall  constitute  a  quorum  to  do  business  ;  but  a  smaller  num- 
ber may  adjourn  from  day  to  day,  and  may  be  authorized  to 
compel  the  attendance  of  absent  members,  in  such  manner 
and  under  such  penalties  as  each  House  may  provide. 

2.  Each  House  may  determine  the  rules  of  its  proceedings, 
punish  its  members  for  disorderly  behaviour,  and  with  the 
concurrence  of  two  thirds,  expel  a  member. 

3.  Each  House  shall  keep  a  journal  of  its  proceedings,  and 
from  time  to  time  publish  the  same,  excepting  such  parts  as 
may  in  their  judgement  require  secrecy ;  and  the  yeas  and 
nays  of  the  members  of  either  House,  on  any  question,  shall, 
at  the  desire  of  one  fifth  of  those  present,  be  entered  on  the 
journal. 

4.  Neither  House,  during  the  session  of  Congress,  shall, 
without  the  consent  of  the  other,  adjourn  for  more  than  three 
days,   nor  to  any  other  place  than  that  in  which  the   two 
Houses  shall  be  sitting. 


270 


SECTION  6. 

1.  The  senators  and  representatives  shall  receive  a  com- 
pensation for  their  services,  to  be  ascertained  by  law,  and  paid 
out  of  the  treasury  of  the  United  States.     They  shall,  in  all 
cases,  except  treason,  felony,  and  breach  of  the  peace,  be  pri- 
vileged from  arrest  during  their  attendance  at  the  session  of 
their  respective  Houses,  and  in  going  to  or  returning  from  the 
same ;   and  for  any  speech  or  debate  in  either  House,  they 
shall  not  be  questioned  in  any  other  place. 

2.  No  senator  or  representative  shall,  during  the  time  for 
which  he  was  elected,  be  appointed  to  any  civil  office  under 
the  authority  of  the  United   States  which  shall  have  been 
created,  or  the  emoluments  whereof  shall  have  been  increased, 
during  such  time  ;  and  no  person  holding  any  office  under  the 
United  States  shall  be  a  member  of  either  House  during  his 
continuance  in  office.        • 

SECTION  7. 

1 .  All  bills  for  raising  revenue  shall  originate  in  the  House 
of  Representatives ;  but  the  Senate  may  propose  or  concur 
with  amendments,  as  on  other  bills. 

2.  Every  bill  which  shall  have  passed  the  House  of  Repre- 
sentatives and  the  Senate,  shall,  before  it  become  a  law,  be 
presented  to  the  President  of  the  United  States  ;  if  he  approve, 
he  shall  sign  it ;  but  if  not,  he  shall  return  it,  with  his  objec- 
tions, to  that  House  in  which  it  shall  have  originated,  who 
shall  enter  the  objection  at  large  on  their  journal,  and  proceed 
to  re-consider  it.    If,  after  such  re-consideration,  two  thirds  of 
that  House  shall  agree  to  pass  the  bill,  it  shall  be  sent,  toge- 
ther with  the  objections,  to  the  other  House,  by  which  it  shall 
likewise  be  re-considered,  and  if  approved  by  two  thirds  of 
that  House,  it  shall  become  a  law.     But  in  all  such  cases,  the 
votes  of  both  Houses  shall  be  determined  by  yeas  and  nays, 
and  the  names  of  the  persons  voting  for  and  against  the  bill 
shall  be  entered  on  the  journal  of  each  House  respectively.  If 


271 

any  bill  shall  not  be  returned  by  the  President  within  ten  days 
(Sundays  excepted)  after  it  shall  have  been  presented  to  him, 
the  same  shall  be  a  law  in  like  manner  as  if  he  had  signed  it, 
unless  the  Congress  by  their  adjournment  prevent  its  return, 
in^  which  case  it  shall  not  be  a  law. 

3.  Every  order,  resolution,  or  vote,  to  which  the  concur- 
rence of  the  Senate  and  House  of  Representatives  may  be  ne- 
cessary, (except  on  a  question  of  adjournment,)  shall  be  pre- 
sented to  the  President  of  the  United  States ;  and  before  the 
same  shall  take  effect,  shall  be  approved  by  him,  or  being  dis- 
approved by  him,  shall  be  repass^ed  by  two  thirds  of  the  Senate 
and  House  of  Representatives,  according  to  the  rules  and  limi- 
tations prescribed  in  the  case  of  a  bill, 

SECTION  8. 

The  Congress  shall  have  power — 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises; 
to  pay  the  debts  and  provide  for  the  common  defence  and  ge- 
neral welfare  of  the  United  States ;  but  all  duties,  imposts, 
and  excises,  shall  be  uniform  throughout  the  United  States  : 

2.  To  borrow  money  on  the  credit  of  the  United  States  : 

3.  To  regulate  commerce  with  foreign  nations,  and  among 
the  several  States,  and  with  the  Indian  tribes : 

4.  To  establish  a  uniform  rule  of  naturalization,  and  uni- 
form laws  on  the  subject  of  bankruptcies  throughout  the  United 
States. 

5.  To  coin  money,  regulate  the  value  thereof,  and  of  foreign 
coin,  and  fix  the  standard  of  weights  and  measures  : 

6.  To  provide  for  the  punishment  of  counterfeiting  the  se- 
curities and  current  coin  of  the  United  States  : 

7 .  To  establish  post  offices  and  post  roads  : 

8.  To  promote  the  progress  of  science  and  useful  arts,  by 
securing,  for  limited  times,  to  authors  and  inventors,  the  ex- 
clusive right  to  their  respective  writings  and  discoveries  : 

9.  To  constitute  tribunals  inferior  to  the  supreme  court:  To 
define  and  punish  piracies  and  felonies  committed  on  the  high 
geas  and  offences  against  the  law  of  nations  : 


272 

10.  To  declare  war,  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures  on  land  and  water  : 

1 1 .  To  raise  and  support  armies  ;  but  no  appropriation  of 
money  to  that  use  shall  be  for  a  longer  term  than  two  years  : 

12.  To  provide  and  maintain  a  navy  : 

]  3.  To  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces  : 

14.  To  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections,  and  repel  invasions  : 

15.  To  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  for  governing  such  part  of  them  as  may  be  em- 
ployed in  the  service  of  the  United  States,  reserving  to  the 
States  respectively  the  appointment  of  the  officers,  and  the 
authority  of  training  the  militia  according  to  the  discipline 
prescribed  by  Congress : 

16.  To  exercise  exclusive  legislation  in  all  cases  whatsoever 
over  such  district  (not  exceeding  ten  miles  square,)  as  may, 
by  cession  of  particular  States,  and  the  acceptance  of  Con- 
gress, become  the  seat  of  government  of  the  United  States, 
and  to  exercise  like  authority  over  all  places  purchased,  by  the 
consent  of  the  legislature  of  the  State  in  which  the  same  shall 
be,  for  the  erection  of  forts,  magazines,  arsenals,  dock-yards, 
and  other  needful  buildings  : — and, 

17.  To  make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  Government  of  the 
United  States,  or  in  any  department  or  officer  thereof. 

SECTION  9. 

1.  The  migration  or  importation  of  such  persons  as  any  of 
the  States  now  existing  shall  think  proper  to  admit,  shall  not 
be  prohibited  by  the  Congress  prior  to  the  year  one  thousand 
eight  hundred  and  eight ;  but  a  tax  or  duty  may  be  imposed 
on  such  importation,  not  exceeding  ten  dollars  for  each  per- 
son. 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be 


273 

suspended,  unless  when,  in  cases  of  rebellion  or*  invasion,  the 
public  safety  may  require  it. 

3.  No  bill  of  attainder,  or  ex  post  facto  law,  shall  be  passed. 

4.  No  capitation  or  other  direct  tax  shall  be  laid,  unless  in 
proportion  to  the  census  or  enumeration  hereinbefore  directed 
to  be  taken. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported  from 
any  State.      No  preference  shall  be  given  by  any  regulation 
of  commerce  or  revenue  to  the  ports  of  one  State  over  those 
of  another  :  nor  shall  vessels  bound  to  or  from  one  State,  be 
obliged  to  enter,  clear,  or  pay  duties  in  another. 

6.  No  money  shall  be  drawn  from  the  treasury,  but  in  con- 
sequence of  appropriations  made  by  law ;  and  a  regular  state- 
ment and  account  of  the  receipts  and  expenditures  of  all  public 
money  shall  be  published  from  time  to  time. 

7.  No  title  of  nobility  shall  be  granted  by  the  United  States, 
and  no  person  holding  any  office  of  profit  or  trust  under  them, 
shall,  without  the  consent  of  the  Congress,  accept  of  any  pre- 
sent, emolument,  office,  or  title  of  any  kind  whatever,  from  any 
king,  prince,  or  foreign  state. 

SECTION  10. 

1.  No  State  shall  enter  into  any  treaty,  alliance,  or  con- 
federation ;  grant  letters  of  marque  and  reprisal ;  coin  money  ; 
emit  bills  of  credit ;  make  anything  but  gold  and  silver  coin  a 
tender  in  payment  of  debts ;  pass  any  bill  of  attainder,  ex 
post  facto  law,  or  law  impairing  the  obligation  of  contracts  ;  or 
grant  any  title  of  nobility. 

2.  No  State  shall,  without  the  consent  of  the  Congress,  lay 
any  imposts  or  duties  on  imports  or  exports,  except  what  may 
be  absolutely  necessary  for  executing  its  inspection  laws ;  and 
the  neat  produce  of  all  duties  and  imposts,  laid  by  any  State 
on  imports  or  exports,  shall  be  for  the  use  of  the  treasury  of 
the  United  States,  and  all  such  laws  shall  be  subject  to  the 
revision  and  control  of  the  Congress.     No  State  shall,  with- 
out the  consent  of  Congress,  lay  any  duty  of  tonnage,  keep 
troops  or  ships  of  war  in  time  of  peace,  enter  into  any  agree- 

N  5 


274 

ment  or  compact  with  another  State,  or  with  a  foreign  power, 
or  engage  in  war,  unless  actually  invaded,  or  in  such  immi- 
nent danger  as  will  not  adroit  of  delay. 

ARTICLE  II. SECTION   1. 

1 .  The  executive  power  shall  be  vested  in  a  President  of  the 
United  States  of  America.     He  shall  hold  his  office  during  the 
term  of  four  years,   and,  together  with  the  Vice-President, 
chosen  for  the  same  term,  be  elected  as  follows : 

2.  Each  State  shall  appoint,  in  such  manner  as  the  legisla- 
ture thereof  may  direct,  a  number  of  electors,  equal  to  the 
whole  number  of  senators  and  representatives  to  which  the 
State  may  be  entitled  in  the  Congress ;  but  no  senator  or  re- 
presentative, or  person  holding  any  office  of  trust  or  profit 
under  the  United  States,  shall  be  appointed  an  elector. 

3.  The  electors  shall  meet  in  their  respective  States,  and 
vote  by  ballot  for  two  persons,  of  whom  one  at  least  shall  not  be 
an  inhabitant  of  the  same  State  with  themselves.      And  they 
shall  make  a  list  of  all  the  persons  voted  for,  and  of  the  number 
of  votes  for  each  ;  which  list  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  seat  of  the  Government  of  the  United 
States,  directed  to  the  President  of  the  Senate.  The  Presidentof 
the  Senpte  shall,  in  the  presence  of  the  Senate  and  House  of  Re- 
presentatives, open  all  the  certificates,  and  the  votes  shall  then 
be  counted.     The  person  having  the  greatest  number  of  votes 
shall  be  the  President,  if  such  number  be  a  majority  of  the 
whole  number  of  electors  appointed ;  and  if  there  be  more  than 
one  who  have  such  a- majority,  and  have  an  equal  number  of 
votes,  then  the  House  of  Representatives  shall  immediately 
choose,  by  ballot,  one  of  them  for  President ;  and  if  no  person 
have  a  majority,  then,  from  the  five  highest  on  the  list,  the 
said  House  shall,  in  like  manner,  choose  the  President.     But, 
in  choosing  the  President,  the  votes  shall  be  taken  by  States, 
the  representation  from  each  State  having  one  vote ;  a  quorum 
for  this  purpose  shall  consist  of  a  member  or  members  from 
two  thirds  of  the  States,  and  a  majority  of  all  the  States  shall 


275 

be  necessary  to  a  choice.  In  every  case,  after  the  choice  of 
the  President,  the  person  having  the  greatest  number  of  votes 
of  the  electors,  shall  be  the  Vice-President.  But  if  there 
should  remain  two  or  more  who  have  equal  votes,  the  Senate 
shall  choose  from  them,  by  ballot,  the  Vice-President. 

4.  The  Congress  may  determine  the  time  of  choosing  the 
electors,  and  the  day  on  which  they  shall  give  their  votes  ; 
which  day  shall  be  the  same  throughout  the  United  States. 

5.  No  person,  except  a  natural-born  citizen,  or  a  citizen  of 
the  United  States  at  the  time  of  the  adoption  of  this  Consti- 
tution, shall  be  eligible  to  the  office  of  President :  neither  shall 
any  person  be  eligible  to  that  office  who  shall  not  have  at- 
tained to  the  age  of  thirty-five  years,  and  been  fourteen  years, 
a  resident  within  the  United  States. 

6.  In  case  of  the  removal  of  the  President  from  office,  or  of 
his  death,  resignation,  or  inability  to  discharge  the  powers  and 
duties  of  the  said  office,  the  same  shall  devolve  on  the  Vice- 
President,  and  the  Congress  may,  by  law,  provide  for  the  case 
of  removal,  death,  resignation,  or  inability,  both  of  the  Presi- 
dent and  Vice-President,  declaring  what  officer  shall  then  act 
as  President,  and  such  officer  shall  act  accordingly,  until  the 
disability  be  removed,  or  a  President  shall  be  elected. 

7., The  President  shall,  at  stated  times,  receive  for  his  ser- 
vices a  compensation,  which  shall  neither  be  increased  nor  di- 
minished during  the  period  for  which  he  shall  have  been  elect- 
ed, and  he  shall  not  receive  within  that  period  any  other  emolu- 
ment from  the  United  States,  or  any  of  them. 

8.  Before  he  enter  on  the  execution  of  his  office,  he  shall 
take  the  following  oath  or  affirmation  : 

9.  "  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  exe- 
cute the  office  of  President  of  the  United  States,  and  will  to 
the  best  of  my  ability  preserve,  protect,  and  defend  the  Con- 
stitution of  the  United  States." 

SECTION  2. 

1 .  The  President  shall  be  commander-in-chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  militia  of  the  seve- 


276 

ral  States,  when  called  into  the  actual  service  of  the  United 
States  ;  he  may  require  the  opinion,  in  writing,  of  the  prin- 
cipal officer  in  each  of  the  executive  departments,  upon  any 
subjects  relating  to  the  duties  of  their  respective  offices  ;  and 
he  shall  have  power  to  grant  reprieves  and  pardons  for  offences 
against  the  United  States,  except  in  cases  of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and  consent 
of  the  Senate,  to  make  treaties,  provided  two  thirds  of  the  sena- 
tors present  concur :  and  he  shall  nominate,  and,  by  and  with 
the  advice  and  consent  of  the  Senate,  shall  appoint  ambassa- 
dors, other  public  ministers  and  consuls,  judges  of  the  supreme 
court,  and  all  other  officers  of  the  United  States,  whose  ap- 
pointments are  not  herein  otherwise  provided  for,  and  which 
shall  be  established  by  law.     But  the  Congress  may,  by  law, 
vest  the  appointment  of  such  inferior  officers  as  they  think 
proper,  in  the  President  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments. 

3.  The  President  shall  have  power  to  fill  up  all  vacancies 
that  may  happen  during  the  recess  of  the  Senate,  by  granting 
commissions  which  shall  expire  at  the  end  of  their  next  ses- 
sion. 

SECTION  3. 

1 .  He  shall  from  time  to  time  give  to  the  Congress  infor- 
mation of  the  state  of  the  Union,  and  recommend  to  their  con- 
sideration such  measures  as  he  shall  judge  necessary  and  ex- 
pedient ;  he  may  on  extraordinary  occasions  convene  both 
Houses,  or  either  of  them,  and  in  case  of  disagreement  between 
them,  with  respect  to  the  time  of  adjournment,  he  may  adjourn 
them  to  such  time  as  he  shall  think  proper  ;  he  shall  receive 
ambassadors  and  other  public  ministers ;  he  shall  take  care 
that  the  laws  be  faithfully  executed ;  and  shall  commission 
U  the  officers  of  the  United  States. 

SECTION  4. 

1.  The  President,  Vice-President,  and  all  civil  officers  of 
the  United  States,  shall  be  removed  from  office  on  impeach- 


277 

ment  for,  and  conviction  of,  treason,  bribery,  or  other  high 
crimes  and  misdemeanors. 

ARTICLE  III. SECTION   1. 

1 .  The  judicial  power  of  the  United  States  shall  be  vested 
in  one  supreme  court,  and  in  such  inferior  courts  as  the  Con- 
gress may  from  time  to  time  ordain  and  establish.  The  judges, 
both  of  the  supreme  and  inferior  courts,  shall  hold  their  offices 
during  good  behaviour  ;  and  shall  at  stated  times  receive  for 
their  services  a  compensation,  which  shall  not  be  diminished 
during  their  continuance  in  office. 

SECTION  2. 

1.  The  judicial  power  shall  extend  to  all  cases  in  law  and 
equity,  arising  under  this  Constitution,  the  laws  of  the  United 
States,  and  treaties  made,  or  which  shall  be  made,  under  their 
authority  ;  to  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls  ;  to  all  cases  of  admiralty  and  maritime 
jurisdiction  ;  to  controversies  to  which  the  United  States  shall 
be  a  party  ;  to  controversies  between  two  or  more  States  ;  be- 
tween a  State  and  citizens  of  another  State  ;  between  citizens 
of  different  States ;  between  citizens  of  the  same  State  claim- 
ing lands  under  grants  of  different  States ;  and  between  a  State 
or  the  citizens  thereof,  and  foreign  States,  citizens  or  subjects. 

2.  In  all  cases  affecting  ambassadors,  other  public  ministers 
and  consuls,  and  those  in  which  a  State  shall  be  a  party,  the 
supreme  court  shall  have  original  jurisdiction.  In  all  the  other 
cases  before  mentioned,  the  supreme  court  shall  have  appellate 
jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions, 
and  under  such  regulations,  as  the  Congress  shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeachment, 
shall  be  by  jury,  and  such  trial  shall  be  held  in  the  State 
where  the  said  crimes  shall  have  been  committed ;  but  when 
not  committed  within  any  State,  the  trial  shall  be  at  such  place 
or  places  as  the  Congress  may  by  law  have  directed. 


278 


SECTION  3. 

1.  Treason  against  the  United  States  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort.     No  person  shall  he  convicted 
of  treason  unless  on  the  testimony  of  two  witnesses  to  the 
same  overt  act,  or  on  confession  in  open  court. 

2.  The  Congress  shall  have  power  to  declare  the  punish- 
ment of  treason  ;  but  no  attainder  of  treason  shall  work  cor- 
ruption of  blood,  or  forfeiture,  except  during  the  life  of  the 
person  attainted. 

ARTICLE  IV. SECTION  1. 

1.  Full  faith  and  credit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings  of  every  other 
State.  And  the  Congress  may,  by  general  laws,  prescribe  the 
manner  in  which  such  acts,  records,  and  proceedings,  shall  be 
proved,  and  the  effect  thereof. 

SECTION  2. 

1 .  The  citizens  of  each  State  shall  be  entitled  to  all  privi- 
leges and  immunities  of  citizens  in  the  several  States. 

2.  A  person  charged  in  any  State  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice,  and  be  found  in  ano- 
ther State,  shall  on  demand  of  the  executive  authority  of  the 
State  from  which  he  fled,  be  delivered  up,  to  be  removed  to 
the  State  having  jurisdiction  of  the  crime. 

3.  No  person  held  to  service  or  labour  in  one  State  under 
the  laws  thereof,  escaping  into  another,  shall  in  consequence 
of  any  law  or  regulation  therein,  be  discharged  from  such  ser- 
vice or  labour ;  but  shall  be  delivered  up  on  claim  of  the  party 
to  whom  such  service  or  labour  may  be  due. 

SECTION  3. 

1.  New  States  may  be  admitted  by  the  Congress  into  this 
Union  :  but  no  new  State  shall  be  formed  or  erected  within 


279 

the  jurisdiction  of  any  other  State,  nor  any  State  be  formed 
by  the  junction  of  two  or  more  States,  or  parts  of  States, 
without  the  consent  of  the  legislatures  of  the  States  concerned, 
as  well  as  of  the  Congress. 

2.  The  Congress  shall  have  power  to  dispose  of,  and  make 
all  needful  rules  and  regulations  respecting,  the  territory  or 
other  property  belonging  to  the  United  States ;  and  nothing 
in  this  Constitution  shall  be  so  construed  as  to  prejudice  any 
claims  of  the  United  States,  or  of  any  particular  State. 

SECTION  4. 

1 .  The  United  States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  Government,  and  shall  protect  each 
of  them  against  invasion  ;  and,  on  application  of  the  legisla- 
ture, or  of  the  executive,  (when  the  legislature  cannot  be  con- 
vened,) against  domestic  violence. 

ABTICLE  v. 

1.  The  Congress,  whenever  two  thirds  of  both  Houses  shall 
deem  it  necessary,  shall  propose  amendments  to  this  Constitu- 
tion ;  or,  on  the  application  of  the  legislatures  of  two  thirds 
of  the  several  States,  shall  call  a  convention  for  proposing 
amendments,  which,  in  either  case,  shall  be  valid  to  all  intents 
and  purposes,  as  part  of  this  Constitution,  when  ratified  by  the 
legislatures  of  three  fourths  of  the  several  States,  or  by  con- 
ventions in  three  fourths  thereof,  as  the  one  or  the  other  mode 
of  ratification  may  be  proposed  by  the  Congress ;  provided, 
that  no  amendment  which  may  be  made  prior  to  the  year  one 
thousand  eight  hundred  and  eight,  shall  in  any  manner  affect 
the  first  and  fourth  clauses  in  the  ninth  section  of  the  first 
article :  and  that  no  State,  without  its  consent,  shall  be  de- 
prived of  its  equal  suffrage  in  the  Senate. 

ARTICLE  VI. 

1.  All  debts  contracted  and  engagements  entered  into, 
before  the  adoption  of  this  Constitution,  shall  be  as  valid 


280 

against  the  United  States  under  this  Constitution  as  under 
the  Confederation. 

2.  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the  United 
States,  shall  be  the  supreme  law  of  the  land  ;  and  the  judges 
in  every  State  shall  be  bound  thereby,  anything  in  the  Consti- 
tution or  laws  of  any  State  to  the  contrary  notwithstanding. 

3.  The  senators  and  representatives  before  mentioned,  and 
the  members  of  the  several  State  legislatures,  and  all  execu- 
tive and  judicial  officers,  both  of  the  United  States  and  of  the 
several  States,  shall  be  bound  by  oath  or  affirmation  to  sup- 
port this  Constitution  :  but  no  religious  test  shall  ever  be  re- 
quired as  a  qualification  to  any  office  or  public  trust  under  the 
United  States. 

ARTICLE  VII. 

1.  The  ratification  of  the  conventions  of  nine  States  shall 
be  sufficient  for  the  establishment  of  this  Constitution  between 
the  States  so  ratifying  the  same. 

Done  in  Convention,  by  the  unanimous  consent  of  the  States 
present,  the  seventeenth  day  of  September,  in  the  year  of 
our  Lord  one  thousand  seven  hundred  and  eighty- seven, 
and  of  the  Independence  of  the  United  States  of  America 
the  twelfth.  In  witness  whereof,  we  have  hereunto  sub- 
scribed our  names. 

GEORGE  WASHINGTON, 
President  and  Deputy  from  Virginia. 

NEW  HAMPSHIRE.  CONNECTICUT. 

John  Langdon,  William  Samuel  Johnson, 

Nicholas  Gilman.  Roger  Sherman. 

MASSACHUSETTS.  NEW  YORK. 

Nathaniel  Gorman,  Alexander  Hamilton. 

Rufus  King. 


NEW  JERSY. 

William  Livingston, 
David  Bearly, 
William  Paterson, 
Jonathan  Dayton. 

PENNSYLVANIA. 

Benjamin  Franklin, 
Thomas  Mafflin, 
Robert  Morris, 
George  Clymer, 
Thomas  Fitzsimons, 
Jared  Ingersoll, 
James  Wilson, 
Governeur  Morris. 

DELAWARE. 

George  Read, 
Gunning  Bedford,  jun. 
John  Dickinson, 
Richard  Bassett, 
Jacob  Broom. 


281 

MARYLAND. 

James  M'Henry, 

Daniel  of  St.  Tho.  Jenifer, 

Daniel  Carrol. 

VIRGINIA. 
John  Blair, 
James  Madison,  jun. 

NORTH  CAROLINA. 

William  Blount, 
Richard  Dobbs  Spaight, 
Hugh  Williamson. 

SOUTH  CAROLINA. 

John  Rutledge, 

Chas.  Cotes  worth  Pinckney, 

Charles  Pinckney, 

Pierce  Butler. 

GEORGIA. 
William  Few, 
Abraham  Baldwin. 


Attest,         WILLIAM  JACKSON,  Secretary. 


AMENDMENTS  TO  THE  CONSTITUTION. 

Art.  1 .  Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion  or  prohibiting  the  free  exercise  thereof ;  or 
abridging  the  freedom  of  speech  or  of  the  press  ;  or  the  right 
of  the  people  peaceably  to  assemble,  and  to  petition  the  Go- 
vernment for  a  redress  of  grievances. 

Art.  2.  A  well-regulated  militia  being  necessary  to  the  se- 
curity of  a  free  Stafr:,  the  right  of  the  people  to  keep  and  bear 
arms  shall  not  be  infringed. 

Art.  3.  No  soldier  shall,  in  time  of  peace,  be  quartered  in 
any  house  without  the  consent  of  the  owner  ;  nor  in  time  of 
war,  but  in  a  manner  prescribed  by  law. 


282 

Art.  4.  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers  and  effects,  against  unreasonable  searches  and 
seizures,  shall  not  be  violated ;  and  no  warrants  shall  issue  but 
upon  probable  cause,  supported  by  oath  or  affirmation,  and  par- 
ticularly describing  the  place  to  be  searched,  and  the  persons 
or  things  to  be  seized. 

Art.  5.  No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  or  indict- 
ment of  a  grand  jury,  except  in  cases  arising  in  the  land  or 
naval  forces,  or  in  the  militia,  when  in  actual  service,  in  time 
of  war  or  public  danger  ;  nor  shall  any  person  be  subject  for 
the  same  offence  to  be  twice  put  in  jeopardy  of  life  or  limb ; 
nor  shall  be  compelled,  in  any  criminal  case,  to  be  a  witness 
against  himself ;  nor  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law ;  nor  shall  private  property  be 
taken  for  public  use,  without  just  compensation. 

Art.  6.  In  all  criminal  prosecutions  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial  by  an  impartial  jury  of 
the  State  and  district  wherein  the  crime  shall  have  been  com- 
mitted, which  district  shall  have  been  previously  ascertained 
by  law  ;  and  to  be  informed  of  the  nature  and  cause  of  the  ac- 
cusation ;  to  be  confronted  with  the  witnesses  against  him  ; 
to  have  compulsory  process  for  obtaining  witnesses  in  his  fa- 
vour ;  and  to  have  the  assistance  of  counsel  for  his  defence. 

Art.  7.  In  suits  at  common  law,  where  the  value  in  contro- 
versy shall  exceed  twenty  dollars,  the  right  of  trial  by  jury 
shall  be  preserved ;  and  no  fact  tried  by  a  jury  shall  be  other- 
wise re-examined  in  any  court  of  the  United  States,  than  ac- 
cording to  the  rules  of  the  common  law. 

Art.  8.  Excessive  bail  shall  not  be  required,  nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishments  inflicted. 

Art.  9.  The  enumeration  in  the  Constitution  of  certain  rights 
shall  not  be  construed  to  deny  or  disparage  others  retained  by 
the  people. 

Art.  10.  The  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively,  or  to  the  people. 


283 

Art.  11.  The  judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 
foreign  State. 

Art.  12.  1.  The  electors  shall  meet  in  their  respective 
States,  and  vote  by  ballot  for  President  and  Vice-President, 
one  of  whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves  ;  they  shall  name  in  their  ballots  the 
person  voted  for  as  President,  and  in  distinct  ballots  the 
person  voted  for  as  Vice-President ;  and  they  shall  make  dis- 
tinct lists  of  all  persons  voted  for  as  President,  and  of  all 
persons  voted  for  as  Vice-President,  and  of  the  number  of 
votes  for  each,  which  lists  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  seat  of  the  Government  of  the  United 
States,  directed  to  the  president  of  the  Senate  ;  the  president 
of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House 
of  Representatives,  open  all  the  certificates,  and  the  votes 
shall  then  be  counted ;  the  person  having  the  greatest  num- 
ber of  votes  for  President,  shall  be  the  President,  if  such  of 
the  number  be  a  majority  of  the  whole  number  of  electors  ap- 
pointed ;  and  if  no  person  have  such  a  majority,  then  from 
the  persons  having  the  highest  numbers,  not  exceeding  three, 
on  the  list  of  those  voted  for  as  President,  the  House  of  Re- 
presentatives shall  choose  immediately,  by  ballot,  the  Presi- 
dent. But,  in  choosing  the  President,  the  votes  shall  be 
taken  by  States,  the  representation  from  each  State  having 
one  vote ;  a  quorum  for  this  purpose  shall  consist  of  a  member 
or  members  from  two  thirds  of  the  States,  and  a  majority  of 
all  the  States  shall  be  necessary  to  a  choice.  And  if  the 
House  of  Representatives  shall  not  choose  a  President  when- 
ever the  right  of  choice  shall  devolve  upon  them,  before  the 
fourth  day  of  March  next  following,  the  Vice-President  shall 
act  as  President,  as  in  the  case  of  the  death  or  other  constitu- 
tional disability  of  the  President. 

2.  The  person  having  the  greatest  number  of  votes  as  Vice- 
President,  shall  be  the  Vice-President,  if  such  number  be  a 


284 

majority  of  the  whole  number  of  electors  appointed ;  and  if 
no  person  have  a  majority,  then  from  the  two  highest  numbers 
on  the  list,  the  Senate  shall  choose  the  Vice-President :  a 
quorum  for  the  purpose  shall  consist  of  two  thirds  of  the 
whole  number  of  senators,  and  a  majority  of  the  whole  num- 
ber shall  be  necessary  to  a  choice. 

3.  But  no  person  constitutionally  ineligible  to  the  office  of 
President,  shall  be  eligible  to  that  of  Vice-President  of  the 
United  States. 


APPENDIX  Q. 
Constitution  of  New  York, 

AS  AMENDED. 

WE,  the  people  of  the  State  of  New  York,  acknowledging 
with  gratitude  the  grace  and  beneficence  of  God,  in  permit- 
ting us  to  make  choice  of  our  form  of  government,  do  esta- 
lish  this  Constitution. 

ARTICLE  1. 

§  1 .  The  legislative  power  of  this  State  shall  be  vested  in  a 
Senate  and  an  Assembly. 

2.  The  Senate  shall  consist  of  thirty-two  members.     The 
senators  shall  be  chosen  for  four  years,  and  shall  be  free- 
holders.    The  assembly  shall  consist   of  one  hundred  and 
twenty-eight  members,  who  shall  be  annually  elected. 

3.  A  majority  of  each  House  shall  constitute  a  quorum  to 
do  business.     Each  House  shall  determine  the  rules  of  its 
own  proceedings,  and  be  the  judge  of  the  qualifications  of  its 
own  members.     Each  House  shall  choose  its  own  officers, 
and  the  Senate  shall  choose  a  temporary  president,  when  the 
lieutenant-governor  shall  not  attend  as  president,  or  shall  act 
as  governor. 

4.  Each  House  shall  keep  a  journal  of  its  proceedings,  and 


285 

publish  the  same,  except  such  parts  as  may  require  secrecy. 
The  doors  of  each  House  shall  be  kept  open,  except  when 
the  public  welfare  shall  require  secrecy.  Neither  House 
shall,  without  the  consent  of  the  other,  adjourn  for  more  than 
two  days. 

5.  The  State  shall  be  divided  into  eight  districts,  to  be 
called  Senate  districts,  each  of  which  shall  choose  four  sena- 
tors. 

And  as  soon  as  the  Senate  shall  meet,  after  the  first  elec- 
tion to  be  held  in  pursuance  of  this  Constitution,  they  shall 
cause  the  senators  to  be  divided  by  lot,  into  four  classes,  of 
eight  in  each,  so  that  every  district  shall  have  one  senator 
of  each  class :  the  classes  to  be  numbered,  one,  two,  three, 
and  four.  And  the  seats  of  the  first  class  shall  be  vacated 
at  the  end  of  the  first  year ;  of  the  second  class,  at  the  end 
of  the  second  year ;  of  the  third  class,  at  the  end  of  the  third 
year ;  of  the  fourth  class,  at  the  end  of  the  fourth  year ;  in 
order  that  one  senator  be  annually  elected  in  each  Senate 
district. 

6.  An  enumeration  of  the  inhabitants  of  the  State  shall  be 
taken,  under  the  direction  of  the  legislature,  in  the  year  one 
thousand  eight  hundred  and  twenty-five,  and  at  the  end  of 
every  ten  years  thereafter ;  and  the  said  districts  shall  be  so 
altered  by  the  legislature,  at  the  first  session  after  the  'return 
of  every  enumeration,  that  each  Senate  district  shall  contain, 
as  nearly  as  may  be,  an  equal  number  of  inhabitants,  exclu- 
ding aliens,  paupers,  and  persons  of  colour  not  taxed  ;  and 
shall  remain  unaltered  until  the  return  of  another  enumera- 
tion, and  shall  at  all  times  consist  of  contiguous  territory ; 
and  no  county  shall  be  divided  in  the  formation  of  a  Senate 
district. 

7.  The  members  of  the  Assembly  shall  be  chosen  by  coun- 
ties, and  shall  be  apportioned  among  the  several  counties  of 
the  State,  as  nearly  as  may  be,  according  to  the  numbers  of 
their  respective  inhabitants,  excluding  aliens,  paupers,  and 
persons  of  colour  not  taxed.     An  apportionment  of  membeis 
of  Assembly  shall  be  made  by  the  legislature  at  its  first  ses- 


286 

sion  after  the  return  of  every  enumeration ;  and,  when  made, 
shall  remain  unaltered  until  another  enumeration  shall  have 
been  taken.  But  an  apportionment  of  members  of  the  As- 
sembly shall  be  made  by  the  present  legislature  according 
to  the  last  enumeration,  taken  under  the  authority  of  the 
United  States,  as  nearly  as  may  be.  Every  county  heretofore 
established,  and  separately  organized,  shall  always  be  entitled 
to  one  member  of  the  Assembly,  and  no  new  county  shall 
hereafter  be  erected,  unless  its  population  shall  entitle  it  to  a 
member. 

8.  Any  bill  may  originate  in  either  House  of  the  legisla- 
ture ;  and  all  bills  passed  by  one  House,  may  be  amended  by 
the  other. 

9.  The  members  of  the  legislature   shall  receive  for  their 
services  a  compensation,  to  be  ascertained  by  law,  and  paid 
out  of  the  public  treasury ;  but  no  increase  of  the  compensa- 
tion shall  take  effect  during  the  year  in  which  it  shall  have 
been  made.     And  no  law  shall  be  passed  increasing  the  com- 
pensation of  the  members  of  the  legislature,  beyond  the  sum 
of  the  three  dollars  a  day. 

10.  No  member  of  the  legislature  shall  receive  any  civil 
appointment  from  the   governor   and    Senate,  or   from   the 
legislature,  during  the  term  for  which  he  shall  have  been 
elected. 

1 1 .  No  person  being  a  member  of  Congress,  or  holding 
any  judicial  or  military  office  under  the  United  States,  shall 
hold  a  seat  in  the  legislature.     And  if  any  person  shall,  while 
a  member  of  the  legislature,  be  elected  to  Congress,  or  ap- 
pointed to  any  office,  civil  or  military,   under  the   United 
States,  his  acceptance  thereof  shall  vacate  his  seat. 

12.  Every  bill  which  shall  have  passed  the  Senate  and  As- 
sembly, shall,  before  it  become  a  law,  be  presented  to  the 
governor :  if  he  approve,  he  shall  sign  it,  but  if  not,  he  shall 
return  it  with  his  objections  to  that  House  in  which  it  shall 
have  originated,  who  shall  enter  the  objections  at  large  on 
their  journal,  and  proceed  to  reconsider  it :  if,   after  such 
reconsideration,    two  thirds   of  the   members  present  shall 


287 

agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the 
objections,  to  the  other  House,  by  which  it  shall  likewise  be 
reconsidered  ;  and  if  approved  by  two  thirds  of  the  members 
present,  it  shall  become  a  law  ;  but  in  all  such  cases,  the 
votes  of  both  Houses  shall  be  determined  by  yeas  and  nays, 
and  the  names  of  the  persons  voting  for  and  against  the  bill 
shall  be  entered  on  the  journals  of  each  House  respectively  : 
if  any  bill  shall  not  be  returned  by  the  governor  within  ten 
days  (Sundays  excepted)  after  it  shall  have  been  presented  to 
him,  the  same  shall  be  a  law,  in  like  manner  as  if  he  had 
signed  it,  unless  the  legislature  shall,  by  their  adjournment, 
prevent  its  return ;  in  which  case  it  shall  not  be  a  law. 

13.  All  officers  holding  their  offices  during  good  behaviour, 
may  be  removed  by  joint  resolution  of  the  two  Houses  of  the 
legislature,  if  two  thirds  of  all  the  members  elected  to  the  As- 
sembly, and  a  majority  of  all  the  members  elected  to  the  Se- 
nate, concur  therein. 

14.  The  political  year  shall  begin  on  the  first  day  of  Janu- 
ary ;  and  the  legislature  shall  every  year  assemble  on  the  first 
Tuesday  in  January,  unless  a  different  day  shall  be  appointed 
by  law. 

15.  The  next  election  for  governor,  lieutenant-governor, 
senators,  and  members  of  Assembly,  shall  commence  on  the 
first  Monday  of  November  one  thousand  eight  hundred  and 
twenty-two ;  and  all  subsequent  elections  shall  be  held  at 
such  time  in  the  month  of  October  or  November  as  the  legis- 
lature shall  by  law  provide. 

16.  The  governor,  lieutenant-governors,  senators,  and  mem- 
bers of  Assembly,  first  elected  under  this  Constitution,  shall 
enter  on  the  duties  of  their  respective  offices  on  the  first  day 
of  January  one  thousand  eight  hundred  and  twenty-three ; 
and  the  governor,  lieutenant-governor,  senators,  and  members 
of  Assembly,  now  in  office,  shall  continue  to  hold  the  same 
until  the  first  day  of  January  one  thousand  eight  hundred  and 
twenty-three,  and  no  longer. 

ARTICLE  2. 
1 .  Every  male  citizen  of  the  age  of  twenty-one  years,  who 


288 

shall  have  been  an  inhabitant  of  this  State  one  year  preceding 
any  election,  and  for  the  last  six  months  a  resident  of  the 
town  or  county  where  he  may  offer  his  vote  ;  and  shall  have, 
within  the  year  next  preceding  the  election,  paid  a  tax  to  the 
State  or  county,  assessed  upon  his  real  or  personal  property ; 
or  shall  by  law  be  exempted  from  taxation ;  or  being  armed 
and  equipped  according  to  law,  shall  have  performed  within 
that  year,  military  duty  in  the  militia  of  this  State  ;  or  who 
shall  be  exempted  from  performing  militia  duty  in  conse- 
quence of  being  a  fireman  in  any  city,  town,  or  village  in  this 
State  ;  and  also  every  male  citizen  of  the  age  of  twenty-one 
years,  who  shall  have  been  for  three  years  next  preceding 
such  elections  an  inhabitant  of  this  State  ;  and  for  the  last 
year  a  resident  in  the  town  or  county  where  he  may  offer  his 
vote  ;  and  shall  have  been,  within  the  last  year,  assessed  to 
labour  upon  the  public  highways,  and  shall  have  performed 
the  labour,  or  paid  an  equivalent  therefore,  according  to  law  ; 
shall  be  entitled  to  vote  in  the  town  or  ward  where  he  actually 
resides,  and  not  elsewhere,  for  all  officers  that  now  are,  or 
hereafter  may  be,  elective  by  the  people  :  but  no  man  of 
colour,  unless  he  shall  have  been  for  three  years  a  citizen  of 
this  State,  and  for  one  year  next  preceding  any  election  shall 
be  seized  and  possessed  of  a  freehold  estate  of  the  value  of 
two  hundred  and  fifty  dollars  over  and  above  all  debts  and  in- 
cumbrances  charged  thereon,  and  shall  have  been  actually 
rated,  and  paid  a  tax  thereon,  shall  be  entitled  to  vote  at  such 
election.  And  no  person  of  colour  shall  be  subject  to  direct 
taxation,  unless  he  shall  be  seized  and  possessed  of  such  real 
estate  as  aforesaid. 

2.  Laws  may  be  passed  excluding  from  the  right  of  suffrage 
persons  who  have  been,   or  may  be,  convicted   of  infamous 
crimes. 

3.  Laws  shall  be  made  for  ascertaining,  by  proper  proofs, 
the  citizen  who  shall  be  entitled  to  the  right  of  suffrage  hereby 
established. 

4.  All  elections  by  the  citizens  shall  be  by  ballot,  except 
for  such  town  officers  as  may  by  law  be  directed  to  be  other- 
wise chosen. 


289 

ARTICLE  3. 

§  1.  The  executive  power  shall  be  vested  in  a  governor. 
He  shall  hold  his  office  for  two  years;  and  a  lieutenant- 
governor  shall  be  chosen  at  the  same  time,  and  for  the  same 
term. 

2.  No  person,  except  a  native  citizen  of  the  United  States, 
shall  be  eligible  to  the  office  of  governor,  nor  shall  any  person 
be  eligible  to  that  office  who  shall  not  be  a  freeholder,  and 
shall  not  have  attained  the  age  of  thirty  years,  and  have  been 
five  years  a  resident  within  the  State ;  unless  he  shall  have 
been  absent  during  that  time  on  public  business  of  the  United 
States,  or  of  this  State. 

3.  The  governor  and  lieutenant-governor  shall  be  elected 
at  the  times  and  places  of  choosing  members  of  the  legislature. 
The  persons  respectively  having  the  highest  number  of  votes 
for  governor  and  lieutenant-governor,  shall  be  elected;  but  in 
case  two  or  more  shall  have  an  equal  and  the  highest  number 
of  v6tes  for  governor  or  for  lieutenant-governor,  the  two 
Houses  of  the  legislature  shall,  by  joint  ballot,  choose  one  of 
the  said  persons,  so  having  an  equal  and  the  highest  number 
of  votes,  for  governor  or  lieutenant-governor. 

4.  The  governor  shall  be  general  and  commander-in- chief 
of  all  the  militia,  and  admiral  of  the  navy  of  the  State.     He 
shall  have  power  to  convene  the  legislature  (or  the  Senate 
only,)  on  extraordinary  occasions.     He  shall  communicate  by 
message  to  the  legislature,  at  every  Session,  the  condition  of 
the  State ;  and  recommend  such  matters  to  them  as  he  shall 
judge  expedient.     He  shall  transact  all  necessary  business 
with  the  officers  of  Government,  civil  and  military.     He  shall 
expediate  all  such  measures  as  may  be  resolved  upon  by  the 
legislature,  and  shall  take  care  that  the  laws  are  faithfully 
executed.     He  shall,  at  stated  times,  receive  for  his  services 
a  compensation,  which  shall  neither  be  increased  nor  dimin- 
ished during  the  term  for  which  he  shall  have  been  elected. 

5.  The  governor  shall  have  power  to  grant  reprieves  and 
pardons,  after  conviction,  for  all  offences  except  treason  and 
cases  of  impeachment.     Upon  convictions  for  treason,  he  shall 

VOL.  I.  O 


290 

have  power  to  suspend  the  execution  of  the  sentence  until  the 
case  shall  be  reported  to  the  legislature  at  its  next  meeting ; 
when  the  legislature  shall  either  pardon,  or  direct  the  execu- 
tion of  the  criminal,  or  grant  a  further  reprieve. 

6.  In  case  of  the  impeachment  of  the  governor,  or  his  re- 
moval from  office,  death,  resignation,  or  absence  from  the  State, 
the  powers  and  duties  of  the  office  shall  devolve  upon  the 
lieutenant-governor  for  the  residue  of  the  term,  or  until  the 
governor  absent  or  impeached  shall  return  or  be  acquitted. 
But  when  the  governor  shall,  with  the  consent  of  the  legisla- 
ture, be  out  of  the  State  in  time  of  war,  at  the  head  of  a  mili- 
tary force  thereof,  he  shall  still  continue  commander-in-chief 
of  all  the  military  force  of  the  State. 

7.  The  lieutenant-governor  shall  be  president  of  the  Senate, 
but  shall  have  only  a  casting  vote  therein.  If  during  a  vacancy 
of  the  office  of  governor  the  lieutenant-governor  shall  be  im- 
peached, displaced,  resign,  die,  or  be  absent  from  the  State, 
the  president  of  the  Senate  shall  act  as  governor  until  the  va- 
cancy shall  be  filled  or  the  disability  shall  cease. 

ARTICLE  4. 

§  1.  Militia  officers  shall  be  chosen,  or  appointed,  as  fol- 
lows : — Captains,  subalterns,  and  non-commissioned  officers, 
shall  be  chosen  by  the  written  votes  of  the  members  of  their 
respective  companies.  Field  officers  of  regiments  and  separate 
battalions,  by  the  written  votes  of  the  commissioned  officers 
of  the  respective  regiments  and  separate  battalions.  Briga- 
dier-generals, by  the  field  officers  of  their  respective  brigades. 
Major-generals,  brigadier-generals,  and  commanding  offi- 
cers of  regiments  or  separate  battalions,  shall  appoint  the  staff 
officers  to  their  respective  divisions,  brigades,  regiments,  or 
separate  battalions. 

'2.  The  governor  shall  nominate,  and,  with  the  consent  of 
the  Senate,  appoint,  all  major-generals,  brigade  inspectors, 
and  chiefs  in  the '  staff  departments,  except  the  adjutants- 
general  and  commissary-general.  The  adjutant-general  shall 
be  appointed  by  the  governor. 


291 

3.  The  legislature  shall,  bylaw,  direct  the  time  and  manner 
of  electing  militia  officers,  and  of  certifying  their  elections  to 
the  governor. 

4.  The  commissioned  officers  of  the  militia  shall  be  com- 
missioned by  the  governor ;  and  no  commissioned  officer  shall 
be  removed  from  office,  unless  by  the  Senate,  on  the  recom- 
mendation of  the  governor,  stating  the  grounds  on  which  such 
removal  is  recommended,  or  by  the  decision  of  a  court-martial, 
pursuant  to  law.     The  present  officers  of  the  militia  shall  hold 
their  commissions  subject  to  removal,  as  before  provided. 

5.  In  case  the  mode  of  election  and  appointment  of  militia 
officers  hereby  directed,  shall  not  be  found  conducive  to  the 
improvement  of  the  militia,  the  legislature  may  abolish  the 
same,  and  provide  by  law  for  their  appointment  and  removal, 
if  two  thirds  of  the  members  present  in  each  House  shall 
concur  therein. 

6.  The  secretary  of  state,  comptroller,  treasurer,  attorney- 
general,  surveyor-general,  and  commissary-general,  shall  be 
appointed  as  follows :     The  Senate  and  Assembly  shall  each 
openly  nominate  one  person  for  the  said  offices  respectively ; 
after  which  they  shall  meet  together,  and  if  they  shall  agree 
in  their  nominations,  the  person  so  nominated  shall  be  appoint- 
ed to  the  office  for  which  he  shall  be  nominated.    If  they  shall 
disagree,  the  appointment  shall  be  made  by  the  joint  ballot  of 
the  senators  and  members  of  Assembly.     The  treasurer  shall  be 
chosen  annually.  The  secretary  of  state,  comptroller,  attorney- 
general,  surveyor-general,  and  commissary-general,  shall  hold 
their  offices  for  three  years,  unless  sooner  removed  by  concur- 
rent resolution  of  the  Senate  and  Assembly. 

7.  The  governor  shall  nominate,  by  message,  in  writing, 
and,  with  the  consent  of  the  Senate,  shall  appoint  all  judicial 
officers,  except  justices  of  the  peace,  who  shall  be  appointed 
in  manner  following,  that  is  to  say  :  The  board  of  supervisors 
in  every  county  in  this  State,  shall,  at  such  tunes  as  the  legis- 
lature may  direct,  meet  together  :  and  they,  or  a  majority  of 
them  so  assembled,  shall  nominate  so  many  persons  as  shall 
be  equal  to  the  number  of  justices  of  the  peace,  to  be  appointed 

o  2 


292 

in  the  several  towns  in  the  respective  counties.  And  the 
judges  of  the  respective  county  courts,  or  a  majority  of  them, 
shall  also  meet  and  nominate  a  like  number  of  persons  :  and 
it  shall  be  the  duty  of  the  said  board  of  supervisors  and  judges 
of  county  courts,  to  compare  such  nominations,  at  such  time 
and  place  as  the  legislature  may  direct ;  and  if,  on  such  com- 
parison, the  said  boards  of  supervisors  and  judges  of  county 
courts  shall  agree  in  their  nominations,  in  all  or  in  part,  they 
shall  file  a  certificate  of  the  nominations,  in  which  they  shall 
agree  in  the  office  of  the  clerk  of  the  county :  and  the  person 
or  persons  named  in  such  certificates  shall  be  justices  of  the 
peace ;  and  in  case  of  disagreement  in  whole  or  in  part,  it 
shall  be  the  further  duty  of  the  said  boards  of  supervisors  and 
judges  respectively  to  transmit  their  said  nominations,  so  far 
as  they  disagree  in  the  same,  to  the  governor,  who  shall  se- 
lect from  the  said  nominations,  and  appoint  so  many  justices  of 
the  peace  as  shall  be  requisite  to  fill  the  vacancies.  Every  person 
appointed  as  justice  of  the  peace  shall  hold  his  office  for  four 
years,  unless  removed  by  the  county  court  for  causes  particu- 
larly assigned  by  the  judges  of  the  said  court.  And  no  justice 
of  the  peace  shall  be  removed  until  he  shall  have  notice  of  the 
charges  made  against  him,  and  an  opportunity  of  being  heard 
in  his  defence. 

8.  Sheriffs  and  clerks  of  counties,  including  the  register, 
and  clerks  of  the  city  and  county  of  New  York,  shall  be  chosen 
by  the  electors  of  the  respective  counties,  once  in  every  three 
years,  and  as  often  as  vacancies  shall  happen.  Sheriffs  shall 
hold  no  other  office,  and  be  ineligible  for  the  next  three  years 
after  the  termination  of  their  offices.  They  may  be  required  by 
law  to  renew  their  security  from  time  to  time,  and  in  default 
of  giving  such  new  security  their  offices  shall  be  deemed  vacant. 
But  the  county  shall  never  be  made  responsible  for  the  acts  of 
the  sheriff.  And  the  governor  may  remove  any  such  sheriff, 
clerk,  or  register,  at  any  time  within  the  three  years  for  which 
he  shall  be  elected,  giving  to  such  sheriff,  clerk,  or  register,  a 
copy  of  the  charge  against  him,  and  an  opportunity  of  being 
heard  in  his  defence,  before  any  removal  shall  be  made. 


293 

9.  The  clerks  of  courts,  except  those  clerks  whose  appoint- 
ment is  provided  for  in  the  preceding  section,  shall  be  appointed 
by  the  courts  of  which  they  respectively  are  clerks  ;  and  district 
attorneys,  by  the  county  courts.     Clerks  of  courts  and  district 
attorneys  shall  hold  their  offices  for  three  years,  unless  sooner 
removed  by  the  courts  appointing  them. 

10.  The  mayors  of  all  the  cities  in  this  State  shall  be  appoint- 
ed annually  by  the  common  councils  of  their  respective  cities. 

11.  So  many  coroners  as  the  legislature  may  direct,  not 
exceeding  four  in  each  county,  shall  be  elected  in  the  same 
manner  as  sheriffs,  and  shall  hold  their  offices  for  the  same 
term,  and  be  removable  in  like  manner. 

12.  The  governor  shall  nominate,  and,  with  the  consent  of 
the  Senate,  appoint  masters  and  examiners  in  chancery ;  who 
shall  hold  their  offices  for  three  years,  unless  sooner  removed 
by  the  Senate  on  the  recommendation  of  the  governor.     The 
registers  and  assisting  registers   shall  be  appointed  by  the 
chancellor,  and  hold  their  offices  during  his  pleasure. 

13.  The  clerk  of  the  court  of  oyer  and  terminer,  and  general 
sessions  of  the  peace,  in  and  for  the  city  and  county  of  New 
York,  shall  be  appointed  by  the  court  of  general  sessions  of 
the  peace  in  said  city,  and  hold  his  office  during  the  pleasure 
of  said  court ;  and  such  clerks  and  other  officers  of  courts, 
whose  appointment  is  not  herein  provided  for,  shall  be  appoin- 
ted by  the  several  courts  ;  or  by  the  governor,  with  the  consent 
of  the  Senate,  as  may  be  directed  by  law. 

14.  The  special  justices  and  the  assistant  justices,  and  their 
clerks,  in  the  city  of  New  York,  shall  be  appointed  by  the 
common  council  of  the  said  city ;  and  shall  hold  their  offices 
for  the  same  term  that  the  justices  of  the  peace,  in  the  other 
counties  of  this  State,  hold  their  offices,  and  shall  be  remov- 
able in  like  manner. 

15.  All  officers  heretofore  elective  by  the  people  shall  con- 
tinue to  be  elected  ;   and  all  other  officers  whose  appointment 
is  not  provided  for  by  this  Constitution,  and  all  officers  whose 
offices  may  be  hereafter  created  by  law,  shall  be  elected-  by  the 
people,  or  appointed,  as  may  by  law  be  directed. 


294 

16.  Where  the  duration  of  any  office  is  not  prescribed  by 
this  Constitution,  it  may  be  declared  by  law,  and  if  not  so 
declared,  such  office  shall  be  held  during  the  pleasure  of  the 
authority  making  the  appointment. 

ARTICLE  5. 

§  1.  The  court  for  the  trial  of  impeachments,  and  the  cor- 
rection of  errors,  shall  consist  of  the  President  of  the  Senate, 
the  senators,  the  chancellors,  and  the  justices  of  the  supreme 
court,  or  the  major  part  of  them  :  but  when  an  impeachment 
shall  be  prosecuted  against  the  chancellor,  or  any  justice  of  the 
supreme  court,  the  person  so  impeached  shall  be  suspended  from 
exercising  his  office  until  his  acquittal ;  and  when  an  appeal 
from  a  decree  in  chancery  shall  be  heard,  the  chancellor  shall 
inform  the  court  of  the  reasons  for  his  decree,  but  shall  have 
no  voice  in  the  final  sentence ;  and  when  a  writ  of  error  shall 
be  brought,  on  a  judgement  of  the  supreme  court,  the  justices 
of  that  court  shall  assign  the  reasons  for  their  judgement,  but 
shall  not  have  a  voice  for  its  affirmance  or  reversal. 

2.  The  assembly  shall  have  the  power  of  impeaching  all 
civil  officers  of  this  State  for  male  and  corrupt  conduct  in 
office,  and  high  crimes  and  misdemeanors  :  but  a  majority  of 
all  the  members  elected  shall  concur  in  an  impeachment.  Be- 
fore the  trial  of  an  impeachment,  the  members  of  the  court 
shall  take  an  oath  or  affirmation,  truly  and  impartially  to  try 
and  determine  the  charge  in  question  according  to  evidence  : 
and  no  person  shall  be  convicted  without  the  concurrence  of 
two  thirds  of  the  members  present.     Judgement,  in  cases  of 
impeachment,  shall  not  extend  further  than  the  removal  from 
office,   and  disqualification  to  hold  and  enjoy  any  office  of 
honour,  trust,  or  profit  under  this  State  ;  but  the  party  convicted 
shall  be  liable  to  indictment  and  punishment,  according  to  law. 

3.  The  chancellor,  and  justices  of  the  supreme  court,  shall 
hold  their  offices  during  good  behaviour,  or  until  they  shall 
attain  the  age  of  sixty  years. 

4.  The  supreme  court  shall  consist  of  a  chief  justice  and 
two  justices,  any  of  whom  may  hold  the  court. 


295 

5.  The  State  shall  be  divided,  by  law,  into  a  convenient 
number  of  circuits,  not  less  than  four,  nor  exceeding  eight, 
subject  to  alteration,  by  the  legislature,  from  time  to  time,  as 
the  public  good  may  require  ;  for  each  of  which  a  circuit  judge 
shall  be  appointed  in  the  same  manner,  and  hold  his  office  by 
the  same  tenure,  as  the  justices  of  the  supreme  court;  and 
who  shall  possess  the  powers  of  a  justice  of  the  supreme  court 
at  chambers,  and  in  the  trial  of  issues  joined  in  the  supreme 
court,  and  in  courts  of  oyer  and  tenniner  and  jail  delivery. 
And  such  equity  powers  may  be  vested  in  the  said  circuit 
judges,  or  in  the  county  courts,  or  in  such  other  subordinate 
courts  as  the  legislature  may  by  law  direct,  subject  to  the 
appellate  jurisdiction  of  the  chancellor. 

6.  Judges  of  the  county  courts,  and  recorders  of  cities,  shall 
hold  their  office  for  five  years,  but  may  be  removed  by  the 
Senate,  on  the  recommendation  of  the  governor,  for  causes  to 
be  stated  in  such  recommendation. 

7.  Neither  the  chancellor,  nor  justices  of  the  supreme  court, 
nor  any  circuit  judge,  shall  hold  any  other  office  or  public  trust. 
All  votes  for  any  elective  office,  given  by  the  legislature  or  the 
people,  for  the  chancellor,  or  a  justice  of  the  supreme  court, 
or  circuit  judge,  during  his  continuance  in  his  judicial  office, 
shall  be  void. 

ARTICLE  6. 

§  1 .  Members  of  the  legislature,  and  all  officers,  executive 
and  judicial,  except  such  inferior  officers  as  may  by  law  be 
exempted,  shall,  before  they  enter  on  the  duties  of  their  re- 
spective offices,  take  and  subscribe  the  following  oath  or 
affirmation : 

I  do  solemnly  swear,  (or  affirm,  as  the  case  may  be,)  that 
I  will  support  the  Constitution  of  the  United  States,  and  the 
Constitution  of  the  State  of  New  York,  and  that  I  will  faith- 
fully discharge  the  duties  of  the  office  of •  according  to 

the  best  of  my  ability. 

And  no  other  oath,  declaration,  or  test,  shall  be  required  as 
a  qualification  for  any  office  or  public  trust. 


296 


ARTICLE  7. 

§  1 .  No  member  of  this  State  shall  be  disfranchised,  or  de- 
prived of  any  of  the  rights  or  privileges  secured  to  any  citizen 
thereof,  unless  by  the  law  of  the  land  or  the  judgement  of  his 
peers. 

2.  The  trial  by  jury,  in  all  cases  in  which  it  has  been  here- 
tofore used,  shall  remain  inviolate  for  ever ;  and  no  new  court 
shall  be  instituted,  but  such  as  shall  proceed  according  to  the 
course  of  the  common  law ;  except  such  courts  of  equity  as  the 
legislature  is  herein  authorized  to  establish. 

3.  The  free  exercise  and  enjoyment  of  religious  profession 
and  worship,  without  discrimination  or  preference,  shall  for 
ever  be  allowed  in  this  State  to  all  mankind ;  but  the  liberty 
of  conscience  hereby  secured  shall  not  be  so  construed  as  to 
excuse  acts  of  licentiousness,  or  justify  practices  inconsistent 
with  the  peace  or  safety  of  this  State. 

4.  And  whereas  the  ministers  of  the  Gospel  are,  by  their 
profession,  dedicated  to  the  service  of  God  and  the  care  of 
souls,  and  ought  not  to  be  diverted  from  the  great  duties  of 
their  functions  :  therefore  no  minister  of  the  Gospel,  or  priest 
of  any  denomination  whatsoever,  shall  at  any  time  hereafter, 
under  any  pretence  or  description  whatever,  be  eligible  to,  or 
capable  of  holding  any  civil  or  military  office  or  place  within 
this  State. 

5.  The  militia  of  this  State  shall,  at  all  times  hereafter,  be 
armed  and  disciplined  and  in  readiness  for  service ;  but  all 
such  inhabitants  of  this  State,  of  any  religious  denomination 
whatever,  as  from  scruples  of  conscience  may  be  averse  to 
bearing  arms,  shall  be  excused  therefrom  by  paying  to  the 
State  an  equivalent  in  money  ;  and  the  legislature  shall  pro- 
vide by  law  for  the  collection  of  such  equivalent,  to  be  estima- 
ted according  to  the  expense  in  time  and  money  of  "an  ordinary 
able-bodied  militia-man. 

6.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be 
suspended,  unless  when,  in  cases  of  rebellion  or  invasion,  the 
public  safety  may  require  its  suspension. 


297 

7.  No  person  shall  be  held  to  answer  for  a  capital  or  other 
infamous  crime,   [except  in  cases  of  impeachment,  and  in 
cases  of  the  militia  when  in  actual  service,  and  the  land  and 
naval  forces  in  time  of  war,  or  which  this  State  may  keep, 
with  the  consent  of  the  Congress,  in  time  of  peace,  and  in 
cases  of  petit  larceny,  under  the  regulation  of  the  legislature,] 
unless  on  presentment,  or  indictment  of  a  grand  jury ;  and  in 
every  trial  on  impeachment  or  indictment  the  party  accused 
shall  be  allowed  counsel  as  in  civil  actions.     No  person  shall 
be  subject  for  the  same  offence  to  be  twice  put  in  jeopardy  of 
life  or  limb  ;  nor  shall  he  be  compelled,  in  any  criminal  case, 
to  be  a  witness  against  himself ;  nor  be  deprived  of  life,  liberty 
or  property,   without  due  process  of  law :  nor  shall  private 
property  be  taken  for  public  use,  without  just  compensation. 

8.  Every  citizen  may  freely  speak,  write,  and  publish  his 
sentiments  on  all  subjects,  being  responsible  for  the  abuse  of 
that  right ;  and  no  law  shall  be  passed  to  restrain  or  abridge 
the  liberty  of  speech  or  of  the  press.     In  all  prosecutions  or  in- 
dictments for  libels,  the  truth  may  be  given  in  evidence  to  the 
jury ;  and  if  it  shall  appear  to  the  jury  that  the  matter  charged 
as  libellous  is  true,  and  was  published  with  good  motives  and 
for  justifiable  ends,  the  party  shall  be  acquitted ;  and  the  jury 
shall  have  the  right  to  determine  the  law  and  the  fact. 

9.  The  assent  of  two  thirds  of  the  members  elected  to  each 
branch  of  the  legislature,  shall  be  requisite  to  every  bill  ap- 
propriating the  public  moneys  or  property,  for  local  or  private 
purposes,  or  creating,  continuing,  altering,  or  renewing,  any 
body  politic  or  corporate. 

10.  The  proceeds  of  all  lands  belonging  to  this  State,  ex- 
cept such  parts  thereof  as  may  be  reserved  or  appropriated  to 
public  use,  or  ceded  to  the  United  States,  which  shall  here- 
after be  sold  or  disposed  of,  together  with  the  fund  denomina- 
ted the  common  school  fund,  shall  be  and  remain  a  perpetual 
fund,  the  interest  of  which  shall  be  inviolably  appropriated 
and  applied  to  the  support  of  common  schools  throughout 
this  State.     Rates  of  toll,  not  less  than  those  agreed  to  by 
the  canal  commissioners,  and  set  forth  in  their  report  to  the 


298 

legislature  of  the  twelfth  of  March  one  thousand  eight  hun- 
dred and  twenty-one,  shall  be  imposed  on,  and  collected  from, 
all  parts  of  the  navigable  communication  between  the  great 
western  and  northern  lakes  and  the  Atlantic  Ocean,  which  now 
are,  or  hereafter  shall  be,  made  and  completed  :  and  the  said 
tolls,  together  with  the  duties  on  the  manufacture  of  all  salt, 
as  established  by  the  act  of  the  fifteenth  of  April  one  thousand 
eight  hundred  and  seventeen  ;  and  the  duties  on  goods  sold  at 
auction,  excepting  therefrom  the  sum  of  thirty-three  thousand 
five  hundred  dollars  otherwise  appropriated  by  the  said  act ; 
and  the  amount  of  the  revenue,  established  by  the  act  of  the 
legislature  of  the  thirtieth  of  March  one  thousand  eight  hun- 
dred and  twenty,  in  lieu  of  the  tax  upon  steam-boat  passen- 
gers ;  shall  be  and  remain  inviolably  appropriated  and  applied 
to  the  completion  of  such  navigable  communications,  and  to 
the  payment  of  the  interest,  and  reimbursement  of  the  capital, 
of  the  money  already  borrowed,  or  which  hereafter  shall  be 
borrowed,  to  make  and  complete  the  same.  And  neither  the 
rates  of  toll  on  the  said  navigable  communications,  nor  the 
duties  on  the  manufacture  of  salt  aforesaid,  nor  the  duties  on 
goods  sold  at  auction,  as  established  by  the  act  of  the  fifteenth 
of  April  one  thousand  eight  hundred  and  seventeen  ;  nor  the 
amount  of  the  revenue  established  by  the  act  of  March  the 
thirtieth,  one  thousand  eight  hundred  and  twenty,  in  lieu  of 
the  tax  upon  steam- boat  passengers  ;  shall  be  reduced  or  di- 
verted, at  any  time,  before  the  full  and  complete  payment  of 
the  principal,  and  interest  of  the  money  borrowed,  or  to  be 
borrowed,  as  aforesaid.  And  the  legislature  shall  never  sell 
or  dispose  of  the  salt  springs  belonging  to  this  State,  nor  the 
lands  contiguous  thereto,  which  may  be  necessary  or  con- 
venient for  their  use,  nor  the  said  navigable  communications 
or  any  part  or  section  thereof,  but  the  same  shall  be  and  re- 
main the  property  of  this  State. 

11.  No  lottery  shall  hereafter  be  authorized  in  this  State; 
and  the  legislature  shall  pass  laws  to  prevent  the  sale  of  all 
lottery  tickets  within  this  State,  except  in  lotteries  already 
provided  for  by  law. 


299 

12.  No  purchase  or  contract  for  the  sale  of  lands  in  this 
State,  made  since  the  fourteenth  day  of  October  one  thousand 
seven  hundred  and  seventy-five,  or  which  may  hereafter  be 
made,  of  or  with  the  Indians  in  this  State,  shall  be  valid,  un- 
less under  the  authority  and  with  the  consent  of  the  legislature. 

13.  Such  parts  of  the  common  law,  and  of  the  acts  of  the 
legislature  of  the  colony  of  New  York,  as  together  did  form 
the  law  of  the  said  colony  on  the  nineteenth  day  of  April  one 
thousand  seven  hundred  and  seventy-five,  and  the  resolutions 
of  the  Congress  of  the  said  colony,  and  of  the  convention  o* 
the  State  of  New  York,  in  force  on  the  twentieth  day  of  April 
one  thousand  seven  hundred  and  seventy-seven,  which  have 
not  since  expired,  or  been  repealed  or  altered ;  and  such  acts 
of  the  legislature  of  this  State  as  are  now  in  force,  shall  be 
and  continue  the  law  of  this  State,  subject  to  such  alterations 
as  the  legislature  shall  make  concerning  the  same.     But  all 
such  parts  of  the  common  law,  and  such  of  the  said  acts,  or 
parts  thereof,  as  are  repugnant  to  this  Constitution,  are  here- 
by abrogated. 

14.  All  grants  of  land  within  the  State,  made  by  the  King 
of  Great  Britain,  or  persons  acting  under  his  authority,  after 
the  fourteenth  day  of  October  one  thousand  seven  hundred 
and  seventy-five,  shall  be  null  and  void  ;  but  nothing'contained 
in  this  Constitution  shall  affect  any  grants  of  land  within  this 
State,  made  by  the  authority  of  the'said  King  or  his  prede- 
cessors, or  shall  annul  any  charters  to  bodies  politic  and  cor- 
porate, by  him  or  them  made  before  that  day  ;  or  shall  affect 
any  such  grants  or  charters  since  made  by  this  State,  or  by 
persons  acting  under  its  authority  ;  or  shall  impair  the  obliga- 
tions of  any  debts  contracted  by  the  State,  or  individuals,  or 
bodies  corporate,  or  any  other  rights  of  property,  or  any  suits, 
actions,  rights  of  action,  or  other  proceedings,  in  courts  .of 
justice. 

ARTICLE  8. 

§  1 .  Any  amendment  or  amendments  to  this  Constitution 
may  be  proposed  in  the  Senate  or  Assembly  ;  and  if  the  same 
shall  be  agreed  to  by  a  majority  of  the  members  elected  to 


300 

each  of  the  two  Houses,  such  proposed  amendment  or  amend- 
ments shall  be  entered  on  their  journals,  with  the  yeas  and 
nays  taken  thereon,  and  referred  to  the  legislature  then  next 
to  be  chosen  ;  and  shall  be  published,  for  three  months  pre- 
vious to  the  time  of  making  such  choice ;  and  if,  in  the  legis- 
lature next  chosen  as  aforesaid,  such  proposed  amendment  or 
amendments  shall  be  agreed  to  by  two  thirds  of  all  the  mem- 
bers elected  to  each  House,  then  it  shall  be  the  duty  of  the 
legislature  to  submit  such  proposed  amendment  or  amendments 
to  the  people,  in  such  manner,  and  at  such  time  as  the  legisla- 
ture shall  prescribe  ;  and  if  the  people  shall  approve  and  ratify 
such  amendment  or  amendments  by  a  majority  of  the  electors 
qualified  to  vote  for  members  of  the  legislature  voting  thereon, 
such  amendment  or  amendments  shall  become  part  of  the 
Constitution. 

ARTICLE  9. 

§  1.  This  Constitution  shall  be  in  force  from  the  last  day 
of  December  in  the  year  one  thousand  eight  hundred  and 
twenty-two.  But  all  those  parts  of  the  same  which  relate  to 
the  right  of  suffrage,  the  division  of  the  State  into  Senate  dis- 
tricts, the  number  of  members  of  the  Assembly  to  be  elected 
in  pursuance  of  this  Constitution,  the  appointment  of  mem- 
bers of  Assembly,  the  elections  hereby  directed  to  commence 
on  the  first  Monday  of  November  in  the  year  one  thousand 
eight  hundred  and  twenty-two,  the  continuance  of  the  mem- 
bers of  the  present  legislature  in  office  until  the  first  day  of 
January  in  the  year  one  thousand  eight  hundred  and  twenty- 
three,  and  the  prohibition  agairist  authorizing  lotteries,  the 
prohibition  against  appropriating  the  public  moneys  or  pro- 
perty for  local  or  private  purposes,  or  creating,  continuing, 
altering,  or  renewing  any  body  politic  or  corporate  without 
the  assent  of  two  thirds  of  the  members  elected  to  each  branch 
of  the  legislature,  shall  be  in  force  and  take  effect  from  the 
last  day  of  February  next.  The  members  of  the  present  le- 
gislature shall,  on  the  first  Monday  of  March  next,  take  and 
subscribe  an  oath  or  affirmation  to  support  the  Constitution, 


301 

so  far  as  the  same  shall  then  be  in  force.  Sheriffs,  clerks  of 
counties,  and  coroners,  shall  be  elected  at  the  election  hereby 
directed  to  commence  on  the  first  Monday  of  November  in 
the  year  one  thousand  eight  hundred  and  twenty-two ;  but 
they  shall  not  enter  on  the  duties  of  their  offices  before  the 
first  day  of  January  then  next  following.  The  commissions 
of  all  persons  holding  civil  offices  on  the  last  day  of  December 
one  thousand  eight  hundred  and  twenty-two,  shall  expire  on 
that  day  ;  but  the  officers  then  in  commission  may  respectively 
continue  to  hold  their  said  offices  until  new  appointments  or 
elections  shall  take  place  under  this  Constitution. 

2.  The  existing  laws,  relative  to  the  manner  of  notifying, 
holding,  and  conducting  elections,  making  returns,  and  can- 
vassing votes,  shall  be  in  force  and  observed,  in  respect  of  the 
elections  hereby  directed  to  commence  on  the  first  Monday 
of  November  in  the  year  one  thousand  eight  hundred  and 
twenty-two,  so  far  as  the  same  are  applicable.  And  the  pre- 
sent legislature  shall  pass  such  other  and  further  laws  as  may 
be  requisite  for  the  execution  of  the  provisions  of  this  Con- 
stitution in  respect  to  elections. 

Done  in  Convention,  at  the  Capitol,  in  the  city  of  Albany, 

the  tenth  day  of  November  in  the  year  one  thousand  eight 

hundred  and  twenty-one,  and  of  the  independence  of  the 

United  States  of  America,  the  forty-sixth. 

Jn  witness   whereof,   we   have   hereunto  subscribed   our 

names. 

DANIEL  D.  TOMPKINS, 

President. 
JOHN  F.BACON,  }  Seeretaries. 

bAMUEL  b.  (jrARDINEB,  J 


APPENDIX  A.— Page  227. 

The  first  American  journal  appeared  in  April  1704,  and 
was  published  at  Boston.  See  Collection  of  the  Historical 
Society  of  Massachusetts,  vol  vi.  p.  66. 

VOL.  I.  P 


302 

It  would  be  a  mistake  to  suppose  that  the  periodical  press 
has  always  been  entirely  free  in  the  Afterican  colonies  :  an 
attempt  was  made  to  establish  something  analogous  to  a  cen- 
sorship and  preliminary  security.  Consult  the  Legislative 
Documents  of  Massachusetts  of  the  14th  of  January  1722. 

The  Committee  appointed  by  the  General  Assembly  (the 
legislative  body  of  the  province,)  for  the  purpose  of  examining 
into  circumstances  connected  with  a  paper  entitled  "  The 
New  England  Courier,"  expresses  its  opinion  that  "  the  tend- 
ency of  the  said  journal  is  to  turn  religion  into  derision,  and 
bring  it  into  contempt ;  that  it  mentions  the  sacred  writers  in 
a  profane  and  irreligious  manner ;  that  it  puts  malicious  inter- 
pretations upon  the  conduct  of  the  ministers  of  the  Gospel ; 
and  that  the  Government  of  His  Majesty  is  insulted,  and  the 
peace  and  tranquillity  of  the  province  disturbed  by  the  said 
journal.  The  Committee  is  consequently  of  opinion  that  the 
printer  and  publisher,  James  Franklin,  should  be  forbidden  to 
print  and  publish  the  said  journal  or  any  other  work  in  future, 
without  having  previously  submitted  it  to  the  Secretary  of  the 
province ;  and  that  the  justices  of  the  peace  for.  the  county  of 
Suffolk  should  be  commissioned  to  require  bail  of  the  said 
James  Franklin  for  his  good  conduct  during  the  ensuing  year." 

The  suggestion  of  the  Committee  was  adopted  and  passed 
into  a  law,  but  the  effect  of  it  was  null,  for  the  journal  eluded 
the  prohibition  by  putting  the  name  of  Benjamin  Franklin  in- 
stead  of  James  Franklin  at  the  bottom  of  its  columns,  and 
this  manoeuvre  was  supported  by  public  opinion. 


END  OF  THE  FIRST  VOLUME. 


Printed  by  Richard  ahd  John  E.  Taylor,  Red  Lion  Court,  Fleet-itreet. 


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The  Proprietors  of  the  BRITISH  and  FOREIGN  LIBRARY,  Conduit  Street,  Hanover 
Square,  feeling  the  necessity  of  meeting  the  great  and  increasing  demand  for  the  perusal 
of  NEW  PUBLICATIONS,  have  devoted  their  attention  to  the  subject,  and  have  digested  a 
plan  for  the  constant  and  regular  Monthly  supply,  in  Town  or  Country,  of  all  New 
Works,  English  and  Foreign,  as  soon  as  published.. 

This  new  plan  is  founded  on  the  German  and  Prussian  mode  of  circulating  New 
Books ;  and  the  Proprietors  conducting  an  extensive  PUBLISHING  BUSINESS,  (chiefly 
devoted  to  the  productions  of  the  most  popular  writers,)  in  connexion  with  their  Library, 
are  prepared  to  furnish  ample  supplies  in  the  various  branches  of  Literature. 

Subscribers  to  this  Establishment  are  assisted  in  the  CHOICE  of  NEW  BOOKS  by  the 
publication  of  SELECT  LISTS  of  the  modern  works,  (furnished  gratuitously,)  which  will 
be  found  to  contain  the  most  esteemed  productions  in  the  following  branches  of  Lite- 
rature. 


HISTORY, 
BIOGRAPHY, 
DIVINITY, 
BELLES  LETTRES, 
MORAL  PHILOSOPHY, 


POLITICAL  PHILOSOPHY, 

FICTION, 

POETRY, 

VOYAGES  AND  TRAVELS, 

THE  DRAMA,  &c. 


AN    ANNUAL    SUBSCRIPTION 

OF  EIGHT  GUINEAS 

Entitles  the  Subscriber  to  Twelve  Volumes  at  a  time  in  Town,  or  Twenty-four  in  the 
Country,  one  half  consisting  of  NEW  PUBLICATIONS,  and  the  remainder,  Works  selected 
from  the  Catalogue ;  or,  if  desired,  for  Four  Guineas  additional  the  year,  each  supply 
to  consist  entirely  of  the  New  and  Popular  Publications,  with  the  privilege  of  directing 
the  purchase  of  any  work  not  previously  added  to  the  Library.  1  he  whole  or  any  por- 
tion of  each  supply  can  be  exchanged  as  often  as  desired. 

*,*  Two  or  more  Families  resident  in  the  same  neighbourhood  may  unite  in  the 
above  Subscription,  subject  to  the  same  regulations  as  the  Societies  hereinafter  men- 
tioned. 

AN    ANNUAL    SUBSCRIPTION 

OF  SIX  GUINEAS 

Entitles  the  Subscriber  to  Ten  Volumes  at  a  time  in  Town,  or  Twenty  in  the  Country, 
one  half  consisting  of  NEW  PUBLICATIONS,  and  the  remainder,  Works  selected  from 
the  Catalogue. 

The  half  Yearly  Subscription,  FOUR  GUINEAS. 
The  Quarterly  Subscription,  TWO  GUINEAS  AND  A  HALF. 


A  SOCIETY  CONSISTING  OF  SIX  MEMBERS, 

On  payment  of  an  Annual  Subscription  of  TEN  GUINEAS,  is  entitled  to  TWENTY-FOUR 
Volumes  at  a  time — English  or  Foreign. 

A  SOCIETY  CONSISTING  OF  TWELVE  MEMBERS, 

On  payment  of  an  annual  Subscription  of  FIFTEEN  GUINEAS,  is  entitled  to  THIRTY 
VOLUMES  at  a  time— English  or  Foreign. 

A  SOCIETY  CONSISTING  OF  EIGHTEEN  MEMBERS, 

On  payment  of  an  Annual  Subscription  of  TWENTY  GUINEAS,  is  entitled  to  THIRTY-SIX 
VOLUMES  at  a  time — English  or  Foreign. 

Societies  consisting  of  any  number  of  Members  arc  also  supplied  in  the  same  ratio. 

The  Books  to  be  exchanged  Monthly,  or  at  more  distant  intervals  if  desired,  and 
each  supply  to  consist  of  Two  THIRDS  New  and  Popular  Publications,  and  ONE  THIRD 
to  be  selected  from  the  Catalogues  of  the  Library,  containing  an  immense  collection  of 
standard  works  in  the 

ENGLISH,  FRENCH,  ITALIAN,  AND  GERMAN  LANGUAGES. 

The  best  Periodical  Works  are  included,  and  will  be  supplied  in  the  following  pro- 
portions :  — 

Six  for  Eighteen  Members— FOUR  for  Twelve  Members — and  THREE  for  Six  Mem- 
bers. 


REGULATIONS,  &c. 


THE  SUBSCRIPTION  TO  BE  PAID  IN  ADVANCE 

AT  THE  TIME  OF  SUBSCRIBING. 

The  expense  of  carriage  to  and  from  the  Library,  Postage,  &c.,  to  be  defrayed  by  the 
Subscriber.  (The  most  economical  mode  of  conveyance  is  always  adopted.) 

Library  Boxes  are  furnished  gratuitously. 

All  Books  to  be  returned  at  the  termination  of  the  subscription,  or  it  detained,  to  be 
considered  as  a  renewal. 

Books  are  not  to  be  suffered,  on  any  account,  to  pass  into  the  hands  oi  a  non-sub- 

For  Joint  Subscriptions,  or  Reading  Societies,  one  Memler  forwarding  his  name  and 
address  to  engage  for  the  return  of  the  Books,  and  all  orders  for  the  supplies  to  be  given 
in  his  name  on  behalf  of  the  Society. 

A  List  of  Fifteen  or  Twenty  Works  is  requested,  and  in  order  to  avoid  loss  of  time 
in  the  exchange  of  Books,  Subscribers  are  requested  to  write  by  post  a  week  previous  to 
sending  of  their  boxes,  specifying  the  Books  they  wish  in  return. 

8$-  Orders  to  be  addressed  to  MESSRS.  SAUNDERS  ^D  OTLEY,  Publishers  and 
Booksellers,  Conduit  Street,  Hanover  Square,  London. 


